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OUTLINES OF THE HISTORY 


OF 


ENGLISH AND AMERICAN LAW 


By the Same Author 

Select Cases on the Law of Real Property, 1906 
A Treatise on the Law- of Real Property, 1915 




OUTLINES OF THE 
HISTORY OF ENGLISH 
AND AMERICAN LAW 


By 

WILLIAM F. WALSH / 

Professor of Law in New iirk University 



THE NEW YORK UNIVERSITY PRESS 
32 WAVERLY PLACE, NEW YORK CITY 

1923 




'U 



Copyright 1923, by 






The New York University Press 




THE NEW YORK UNIVERSITY PRESS 

COMMITTEE of publication 

Arthur Huntington Nason, Ph.D.,- Chairman 
Director of the Press 

Earle Brownell Babcock, Ph.D. 

Harold Dickinson Senior, M.D., Sc.D., F.R.C.S. 



The Kennebec Journal Press 
Augusta, Maine 


SEP 17 23 ; 


. *yt/d % 

©C1A752988^ 



PREFACE 


A KNOWLEDGE of the way in which the law has 
developed is essential to an adequate understanding 
of its nature and application. An appreciation of 
the principles which underlie its present and future growth 
can be acquired only by a study of its history. A law student 
needs constantly, throughout his years of law study, the light 
which the history of its development throws upon it. If he 
is to do his part successfully as lawyer or judge in applying 
the law to the many new situations that are constantly arising, 
he must know and understand the principles of the law’s 
growth in the past. Though an adequate knowledge of legal 
history can be acquired in a postgraduate course, we all know 
how few, comparatively, take such courses. The history of 
the law should be studied as part of every topic in the law 
school course of study. Nothing effective, for instance, can 
be done in teaching the law of property without teaching its 
history. The history of torts, crimes, contracts, quasi-con¬ 
tracts, equity jurisdiction in all its branches, agency, pleading 
and practice, wills, and every other branch of the law, makes 
clear to the student as he goes on with his work much that 
otherwise would always be obscure. The history of the law 
of property must be taught as part of the course on property 
law. The history of contract law should be taught as part 
of the course on contracts. The same is true in varying 
degree of every other topic usually taught in the law schools. 
Defective instruction in the undergraduate courses should not 
be tolerated in the hope that the defect may be removed by a 
postgraduate course in legal history. 


VI 


PREFACE 


The purpose of this work is to give, as simply and clearly 
as possible, the essentials of the history of English and Amer¬ 
ican law within the limits of a single volume of modest size. 
No pretense is made to original investigation. The works of 
the outstanding investigators and students of English legal 
history as cited in the notes have been freely drawn upon. 
It is expected that these citations will be used by students as 
a basis for broader reading and study. When this work is 
used as the textbook in a postgraduate course in legal history, 
thorough and comprehensive reading and study of the more 
important authorities cited in the notes should be insisted 
upon. The book will be used by the author in such a course 
of postgraduate study, and also in the undergraduate courses 
given by him on the law of property. The history of each 
of the more important branches of the law as taught in the 
law schools is given separately, so that the book may be used 
by the students in all the subjects so treated. A careful and 
comprehensive treatment of the history of each branch of the 
law, given as part of each instructor’s presentation of his 
subject, would be a real step forward in legal education, and 
therefore in the development of the law. 

This book is based entirely upon the works, as cited in the 
notes, of the many writers on English and American legal 
history whose research and study have made this work pos¬ 
sible, and to whom the author gladly expresses his indebted¬ 
ness. His object has been to make more readily available 
to the average law student the results of their labor, now 
scattered so broadly in law journals or contained in works of 
several volumes available principally for postgraduate work. 

The author wishes to express his indebtedness to Dean 


PREFACE vii 

Wigmore for his very helpful criticism of the manuscript 
prior to publication, and for his suggestions—which involved 
for the most part the adding of new topics—substantial com¬ 
pliance with which has added much to the completeness of 
the work. The author desires also to acknowledge the pains¬ 
taking care of Professor Nason, Director of the New York 
University Press. 

Wm. F. Walsh. 


New York, October 12, 1922 














TABLE OF CONTENTS 


BOOK ONE 

ANGLO-SAXON AND FEUDAL LAW 
Bibliography—Book One. 3 

CHAPTER I 

% 

Anglo-Saxon Law 

§ I. The Beginnings of English Law. 5 

§2. The Angles and Saxons before the Migration. 6 

§3. The Anglo-Saxon Migration to England. 10 

§4. Development of Saxon Government and Courts of Law. 15 

§5. Anglo-Saxon Real Property Law. 19 

§6. Development of Territorial Lordships. 28 

§7. Ranks and Grades of Men. 32 

§8. Crimes, Tort, and Contract in Anglo-Saxon Law. 34^ 

§9. Summary of Anglo-Saxon Laws. 39 

CHAPTER II 
Feudal Law 

§10. Norman Law and the Feudal System. 43 

§11. The Norman Conquest and Introduction of Feudalism into 

England . 45 

§ 12. Military Tenure or Knight’s Service. 49 

§ 13. Frankalmoign and Serjeanty. 57 

§ 14. Socage Tenure . 58 

§15. Reliefs, Aids, Wardship, Marriage. 60 

§ 16. Villein or Customary Tenure. 63 

§ 17. Administration of Law.—The King's Court. 68 

§ 18. Administration of Law.—County Courts and Hundred Courts 70 

§ 19. The Manor and the Manorial Court. 73 

CHAPTER HI 

Growth of the Common Law and Decline of Feudalism 

§20. State of the Law on Accession of Henry II. 78 

§21. The Reforms of Henry II in the Administration of Law- 81 

§22. Glanville’s Treatise . 86 
























X 


HISTORY OF ENGUSH AND AMERICAN LAW 
BOOK TWO 


ORIGINS AND DEVELOPMENT OF THE LAW 
OF PROPERTY 

Bibliography—Book Two. 9 1 

CHAPTER IV 
Ownership and Possession 

§ 23. Introductory . 95 

§24. Ownership and Feudalism. 95 

§25. Seisin and Possession. 96 

§ 26. Remedies for Protection of Seisin. 99 

CHAPTER V 
Freehold Estates 

§27. Estates in Fee. 108 

§28. The Conditional Fee and the Estate in Fee Tail. 112 

§29. Estates for Life. 117 

§ 30. Dower . 120 

§31. Estates by the Marital Right and Curtesy. 125 

CHAPTER VI 

Estates Less Than Freehold.—Landlord and Tenant 

§32. Tenancies for Years. 129 

§33- Development of Ejectment from the Writ of Ejectio Firmae 134 

§34. Ejectment.—Its Later Development. 138 

§35. Tenancies of Indefinite Duration. 142 

§36. (a) Form of Lease; (b) Assignments; (c) Covenants; 

(d) Surrenders . 145 

CHAPTER VII 
Conveyancing of Land 

§37. Early History . 150 

§38. Subinfeudation and Substitution. 152 

§39. The Statute Quia Emptores . 154 

§40. Form of Conveyances.—Livery of Seisin. 156 

§41. Deeds of Release, Quitclaim, Surrender, and Grant. 160 

§ 42. Fines . 162 

§ 43 - Conveyances under the Statute of Uses. 163 

§ 44 - The Modern Deed of Conveyance. 167 


























TABLE OF CONTENTS xi 

CHAPTER VIII 
Incidents of Legal Ownership 

§45. Real and Personal Property Distinguished. 169 

§46. Special Property in Water and Wild Animals. 172 

§47. Emblements; Crops . 173 

§ 48. Fixtures . 174 

§49. Waste . 184 

CHAPTER IX 

Estates in Equity, Uses and Trusts 

§50. Further Development of Common Law Courts. 190 

§51. Development of Equity Jurisdiction in Chancery. 195 

§52. Uses before the Statute of Uses. 199 

§53. The Statute of Uses. 206 

§ 54. Trusts . 208 

§55. Modern Trusts, Express and Implied. 210 

CHAPTER X 
Co-ownership 

§ 56. Origin and Development of Joint Tenancies, Tenancies in 

Common, and Coparceny. 217 

§ 57. The Modern Law of Joint Tenancies and Tenancies in 

Common . 223 

§58. Estates in Entirety. 228 

CHAPTER XI 
Estates upon Condition 

§ 59. Origin and Early History. 232 

§60. Later History of Conditional Estates. 233 

§61. Estates upon Limitation. 239 

CHAPTER XII 
Future Estates 

§62. Reversions and Remainders. 243 

§63. Executory Estates . 248 

§64. Executory Devises . 253 

§65. Modern Law of Future Estates. 258 

§66. The Rule in Shelley’s Case. 260 

§67. Future Interests in Personal Property. 262 

§ 68. The Rule against Perpetuities. 266 


























HISTORY OF ENGLISH AND AMERICAN LAW 


xii 

CHAPTER XIII 
Incorporeal Interests 

§69. Incorporeal Interests in the Thirteenth Century. 273 

§70. Rents.—Kinds and Methods of Enforcement. 275 

§71. Suspension and Extinguishment of Rent. 280 

§ 72. Profits . 284 

§ 73. Easements.—Early History. 288 

§74. Creation of Easements and Profits. 292 

§ 75. Easements and Profits by Prescription.. 298 

§76. Covenants Running with the Land. 303 

CHAPTER XIV 

Development of the Law of Personal Property 

§ 77. Ownership and Possession.—The Appeal of Larceny. 313 

§78. Ownership and Possession; Trespass De Bonis Asportatis and 

Replevin . 316 

§79. Bailments.—Detinue and Trover. 321 

§80. Nature of Ownership and Possession of Chattels. 328 

§81. Transfer of Title to Chattels. 332 

§82. Transfer or Assignment of Choses in Action. 333 

CHAPTER XV 

Inheritance and Wills 

§83. Inheritance in the Saxon Period. 345 

§84. Inheritance in the Feudal Period. 345 

§85. Statutory Changes in the Law of Inheritance. 351 

§86. Wills; The Saxon Period. 354 

§87. Wills; The Feudal Period. 356 

§88. Wills under the Statutes. 360 

§ 89. Intestate ^Succession to Chattels. 360 

BOOK THREE 

ORIGIN AND DEVELOPMENT OF THE LAW OF 
CRIMES, TORTS, AND CONTRACTS 

Bibliography—Book Three . 367 

CHAPTER XVI 
The Law of Crimes 

§ 90. Early History . 371 

§91. Felonies . 372 

§92. Misdemeanors . 378 

§93. Principles of Liability for Crimes. 382 




























TABLE OF CONTENTS xiii 

CHAPTER XVII 
Torts 

1 94. History of Liability for Torts. 385 

§95. Torts of Servants. 392 

§96. Specific Torts Involving Personal Injuries. 395 

§97. Personal Torts.—Libel, Slander, and Malicious Persecution.. 397 
§98. Nuisance and Negligence. 402 

CHAPTER XVIII 
Development of Contract 

§ 99. Contract in Saxon and Early Norman Times. 408 

§ 100. Debt . 410 

§ 101. Covenant.—Contracts under Seal. 412 

§ 102. Parol Contracts prior to Assumpsit. 413 

§ 103. Special Assumpsit . 414 

§ 104. Indebitatus Assumpsit . 420 

§ 105. Implied Assumpsit . 421 

§ 106. Indebitatus Assumpsit to Enforce Quasi-Contracts, or Con¬ 
tracts Implied by Law. 423 

§ 107. Assumpsit not Allowed for Use and Occupation. 426 

§ 108. Consideration in Contract .•. 427 

§ 109. Third Parties as Beneficiaries in Contract. 433 

§ no. Sales . 437 

§ in. Agency . 439 

CHAPTER XIX 

Development of Commercial Law 

§ 112. The Law Merchant. 443 

§113. Development of Negotiable Instruments. 445 

§ 114. Partnerships . 447 

§ 115. Early Corporations . '452 

§ 116. Powers of Corporations. 455 

§ 117. Rights and Duties of Stockholders and Directors. 458 

§118. Insurance . 463 

CHAPTER XX 
Capacity of Persons 

§ 119. Married Women . 467 

§ 120. Infants . 470 




























xiv HISTORY OF ENGLISH AND AMERICAN LAW 
CHAPTER XXI 

Development of Equity Jurisdiction 

§121. Organization of the Court of Chancery. 473 

§ 122. Growth of Equity Jurisdiction. 475 

§ 123. Jurisdiction of Equity over Contract. 478 

§124. Jurisdiction of Equity over Torts. 481 

§ 125. Mortgages in Equity . 484 

CHAPTER XXII 

Outline of the Development of Procedure, and Reforms 
of the Nineteenth Century 

§ 126. Early Procedure, Pleading, and Trial Practice. 489 

§ 127. Development of Criminal Procedure. 495 

§ 128. Outline of Nineteenth Century Reforms in Procedure. 499 





















OUTLINES OF THE HISTORY OF ENGLISH AND 


AMERICAN LAW 
BOOK ONE 


ANGLO-SAXON AND FEUDAL LAW 



BIBLIOGRAPHY — BOOK ONE 
Anglo-Saxon Law 

Pollock & Maitland, History of English Law, Chapter I. 

Holds worth, History of English Law, II, 1-106. 

Digby, History of the Law of Real Property, (5th ed.), 
Chapter I. 

Stubbs, Constitutional History of England, (4th ed.), I, 
1-207. 

Kemble, Saxons in England. 

Vinogradoff, Folkland, in English Historical Review, VIII, 
1-17, (1893). 

Vinogradoff, Villenage in England. 

Vinogradoff, English Society in the Eleventh Century. 

Seebohm, The Village Community. 

Seebohm, Tribal Custom in Anglo-Saxon Law. 

Essays in Anglo-Saxon Law. 

Freeman, Norman Conquest. 

Maitland, Domesday Book and Beyond. 

Jenks, Teutonic Lazu, Select Essays in Anglo-American 
Legal History, I, 34-87. 

Pollock, English Law before the Norman Conquest, in Law 
Quarterly Review, XIV, 291-306; Select Essays in Anglo- 
American Legal History, I, 88-107. 

Anglo-Saxon Codes: Lieberman, Die Gesetze der Angel- 
sachsen; Thorpe, Ancient Lazvs and Institutes of England; 
Schmid, Die Gesetze der Angelsachsen. 

Feudal Law 

Pollock & Maitland, History of English Law, I, 41-678. 

Digby, History of the Law of Real Property, (5th ed.), 
29-115. 


4 


HISTORY OF ENGLISH AND AMERICAN LAW 


Stubbs, Constitutional History of England, (4th ed.), I, 
273 et seq. 

Glanville’s Treatise; Bract on’s Treatise. 

Translations of the more important passages from Glanville 
and Bracton appear in Digby, History of the Law of Real 
Property, supra. 

Growth of the Common Law and Decline of Feudalism 

Pollock & Maitland, History of English Law, I, 115-204. 
Holds worth, History of English Law, II, 107-169. 

Digby, History of the Law of Real Property, (5th ed.), 
62-210. 

Thayer, Preliminary Treatise on Evidence, Chapters I 
and II. 

Green, The Centralization of Norman Justice under Henry 
II, in Select Essays in Anglo-American Legal History, I, 
111-138. 


CHAPTER I 


ANGLO-SAXON LAW 


§i. The Beginnings of English Law .—The history of 
our law starts with the Anglo-Saxon period. We have no 
record or other valid evidence of connection between the laws 
of the ancient Britons and the system of law that developed 
in England during the period of Saxon supremacy and under 
the Normans. The Angles and Saxons migrated to England 
in entire communities, taking with them their customs and 
laws and system of government. The Britons were either 
exterminated or driven out or reduced to a state of utter servil¬ 
ity. Withdrawing to Wales and to the western districts of 
England, those who survived kept to themselves. We know 
that they failed to convert their conquerors to Christianity, 
and we are safe in inferring that they did not try. There 
seems to be no doubt that the Anglo-Saxon customs and laws, 
brought over from Germany, developed in England without 
any real influence or modification arising from the laws and 
customs of the Britons. 1 Such of the Roman law as the Britons 
may have acquired during the Roman period of domination 
had, for this reason, no effect on the Anglo-Saxons, who 
knew nothing of Roman law before the migration. 2 The 


§i. 1 See Stubbs. Const. Hist. 
Eng., I, ch. 4; Poll. & Mait., Hist. 
Eng. Law, Introd., xxix. 

2 The fact that a fresh conver¬ 
sion of the country to Christianity 
had to be made without aid from 
the remnant of the church of the 
ancien.t Britons, and that the Britons 
seem to have lapsed for the most 
part to their original paganism 
after the- withdrawal of the Ro¬ 
mans and the subsequent conquest 


by the Anglo-Saxons, indicates very 
clearly that the laws of the Romans 
must have been lost with their lan¬ 
guage and religion, and that the 
Britons had very little if any Roman 
law to impart to the Anglo-Saxons 
even if there had been adoption of 
any of their laws and customs, 
which there evidently was not. See 
Poll. & Mait., Hist. Eng. Law, In- 
trod., xxxii. 


6 HISTORY OF ENGLISH AND AMERICAN LAW 

Roman and Canon law subsequently had a very important 
part to play in the development of our common law; but it 
came in at a much later date, in some measure through the 
church after the conversion of the Anglo-Saxons to Chris¬ 
tianity, but for the most part after the Norman Conquest 
during the twelfth and thirteenth centuries. 3 

Our common law, therefore, originating in the laws and 
customs brought over by the Angles and Saxons from North 
Germany, developing through a very gradual process of transi¬ 
tion and growth during the five centuries of Anglo-Saxon 
supremacy, being modified and profoundly affected by the 
Norman Conquest and the establishment of feudalism, ulti¬ 
mately took form as a system of judge-made law during the 
latter half of the twelfth and all of the thirteenth centuries. 
This development will be traced along broad lines in the first 
three chapters of this work. The development of the different 
branches of the law as we have it today will then be traced 
separately in the remaining chapters. 

§2. The Angles and Saxons before the Migration .—Caesar 
in his Commentaries gives us our first record of the customs 
and life of the Germanic tribes. He describes them as com¬ 
munities of families brought together by blood-relationship 
or religious rites, occupying a district assigned them by their 
magistrates or chiefs for a year only, moving on to fresh 
pastures each year and cultivating only so much of the land 
as was needed to supply grain for the year, living a pastoral, 
nomadic life, without permanent holdings or dwellings. 1 
About a hundred and fifty years later, Tacitus in his Germania 
describes them as occupying permanent village settlements. 

3 Freeman, Norman Conq., I, 20: Drusus and Germanicus.” See also 
“Our forefathers came from lands Stubbs, Const. Hist. Eng., I, 11. 
where the Roman eagle had never §2. 1 Caesar, Gallic Wars, VI, 
been seen, or had been seen only 21-24. See Stubbs, Const. Hist. 
during the momentary incursions of Eng., ch. 2. 


ANGLO-SAXON LAW 


7 


cultivating community lands which were assigned to the mem¬ 
bers of the community each year, and having their chief 
wealth in cattle pastured in common in the surrounding waste 
not appropriated for their village houses and enclosures or 
as cultivated fields. Something in the nature of absolute indi¬ 
vidual ownership must have existed in the dwellings with 
their enclosures; but the cultivated land belonged to the com¬ 
munity, the individual holding his tract only for the period it 
was assigned to him, and subject to reassignment among 
members of the community from time to time. 2 

Different social grades or ranks undoubtedly existed. These 
were the nobles, the freemen, the freedmen, and the unfree. 3 
Nobility existed by virtue of descent from ancint kings and 
great men. It gave no political right not enjoyed by every 
freeman. The freemen, including, of course, the nobility, 
constituted the political foundation of the state. The freed¬ 
men were probably without political rights. The unfree were 
of two classes, slaves and servile tenants, the latter very like 
the villeins of a later time in England. 4 

The organization of government and law was very simple 
and democratic. The central power, or governing body, was 
the assembly of the tribe, at which all the freemen were 
entitled to be present. This assembly elected the principes, 
or magistrates, who presided over the courts of the pagi, or 
larger divisions corresponding to the English “hundred” of 
later times, and of the vici, or villages. In the pagus, or larger 
division, a hundred companions assisted the magistrate in his 
deliberations and decisions. A rude sort of justice was admin¬ 
istered, and crimes and private wrongs were punished or 
atoned for, in a manner in many respects resembling closely 
the administration of justice in the hundred and county courts 

•Tacitus, Germ., ch. 26; Stubbs, Stubbs, Const. Hist. Eng., I, 21. 
Const. Hist. Eng., I, 17-21. 4 See Stubbs, Const. Hist. Eng.,. 

* Tacitus, Germ., ch. 7, 24, 25, 44; I, 21-24. 


8 


HISTORY OF ENGUSH AND AMERICAN LAW 


in England after the migration. 5 The army of the tribe, or 
the host, was made up of companies of one hundred men 
selected from each pagus, together with the magistrates, or 
principes, with their trains of personal followers. Thus each 
pagus chose one hundred men to act with the magistrate as 
a local court, and also a hundred soldiers for the army of the 
tribe or nation. In this way, the hundred soldiers of the army, 
or host, were identified with the pagus, or subdivision of the 
tribe. The villages, or vici, were subdivisions of the pagus. 
The Angles, Saxons, and Jutes had no king, a statement true 
also of the large majority of the other Germanic tribes. Where 
kings existed, their power was not great, the real power of 
government existing in the assemblies of the tribe and the 
local magistrates, or principes, elected by the assembly.® 

The dux, or leader of the army in any expedition or enter¬ 
prise, was selected on the basis of his preeminent qualifications 
as a military leader and fighter, and of the size of his personal 
following, or comitatus . 7 

This comitatus, or personal following of the magistrate, 
was made up of young men skilled in arms and frequently 
of noble birth, who were supplied by him with arms and 
equipment, food, clothing, and entertainment, and in return 
fought in his defense and in his behalf in all his enterprises. 
They were bound to him by the closest ties of honor and 
service. They were his men, and their ambition was to excel 
in deeds of valor in his behalf. 8 The development of the comi¬ 
tatus into the relation of lord and man in later times is of the 
first importance in the subsequent development of feudal law. 

5 See Stubbs, Const. Hist. Eng., Stubbs, Const. Hist. Eng., I, 27, 28. 
I, 29-31. 8 Stubbs, Const. Hist. Eng. (4th 

There was no political union be- cd.), I, 29-32. 
tween the various Germanic tribes. 7 Stubbs, Const. Hist. Eng., 1, 32. 

They had the same religious rites; 8 Digby, Hist. Law Real Prop. 

and language and laws were simi- (5th ed.), 19-21; Tacitus, Germ., 
lar; but each tribe formed a dis- ch. 13,14; Stubbs, Const. Hist. Eng.. 
tinct and independent state. Se« I, 26, 27. 


ANGLO-SAXON LAW 


9 


The unit of the Saxon state was undoubtedly the village 
community referred to in the foregoing brief outline. The 
Germanic village community, or mark system of the middle 
ages, is definitely known to us through the research of modern 
historical scholars. 9 In its theoretical perfection, it was made 
up of a central township of dwellings and outbuildings with 
their enclosures, each dwelling with its outbuildings being 
occupied by a freeholder, head of a family, as absolute owner. 
The outlying lands nearest to the houses and best suited to 
tillage were allotted to the freeholders in equal shares, each 
getting a definite portion for a fixed period of time to be 
cultivated as his own during that time, reallotments being 
made periodically. All were bound to grow the same or similar 
crops in regular rotation, and to let the land lie fallow every 
second or third year. During this time all had the right to 
use it for pasturage purposes; and, to that end, all fences divid¬ 
ing such parcels had to be removed. Other outlying land, pre¬ 
sumably such as was better adapted to that purpose than to 
tillage, was used as meadow land for the hay crop. This land 
was assigned in equal strips in the same way; but, after the 
harvesting of the hay crop by the owners, all fences had to be 
removed and it was used as common pasturage by all for the 
remainder of the season. The outlying land assigned to the 
community and not used for these purposes, was the waste, 
or common, and was used by all in common as pasturage for 
their cattle and to secure firewood and building material. 
Theoretically each member held equally with every other. 
Actually, however, it is very doubtful if this simplicity and 
equality ever existed to any considerable extent. We know 
that there were differences in wealth among the Saxon free¬ 
men; in other words, that some had more cattle than others: 


9 See writings of Von Maurer; 
also Nasse’s treatise On the Agri¬ 
cultural Community of the Middle 
Ages, translation by Col. Auvry, 


(Macmillan, 1878) ; Maine, Village 
Communities , Lects. Ill and V; 
Stubbs, Const. Hist. Eng. (4th ed. 1 ), 
I, S3. 57. 


IO 


HISTORY OF ENGLISH AND AMERICAN LAW 


and that those having more cattle would require more meadow 
land, at least, for their support. The princeps, or magistrate 
of the village community and of the pagus, or larger division, 
with his comitatus, must have had a much more extensive 
establishment than the ordinary freeman, with many more 
mouths to feed; and this must have involved ownership of 
a much more extensive part of the common fields, probably 
in most cases a tract held and cultivated by his slaves and 
servile tenants distinct from the common fields of the village 
community. Individual skill and industry must have varied, 
then as at all times, resulting in more extensive holdings by 
some than by others. As new districts were acquired by con¬ 
quest or settlement, the princeps or magistrate, in establishing 
a new community, probably rewarded the most worthy of 
his followers in accordance with their worth, in the division 
of the land. There is very little doubt, therefore, that indi¬ 
vidual holdings varied in size and importance within the 
common fields of the village communities, and that, within 
the village, there were entirely separate holdings of the 
wealthier and more powerful, cultivated by their slaves and 
servants, independent of the system of common-field cultivation 
followed by the other freemen of the village. 10 


§3. The Anglo-Saxon Migration to England .—The con¬ 
quest of the Britons by the Angles, Saxons, and Jutes was 
accomplished by a series of expeditions, separately organized 
and independent, extending over a period of about a century 
and a half, beginning with about the middle of the fifth century. 
The eastern part of the country was first subdued and occupied. 


10 Common-field tenure was prim¬ 
itive; and, as a community devel¬ 
oped, separate ownership of the 
arable land must have become the 
rule, common-field farming between 
adjoining owners of strips or par¬ 
cels being still continued, as well as 


the use in common of woodland 
and pasture, and also meetings of 
the freehold residents of the town¬ 
ship for the regulation of locaf 
affairs. See Stubbs, Const. Hist. 
Eng. (4th ed.), I, 56. 


ANGLO-SAXON LAW 


II 


Kent was overcome at a single stroke. Wessex was occupied 
gradually by a forcing westward of the native Britons, who 
held their own, however, along a vaguely defined and fluctuat¬ 
ing line well toward the western mountains and the sea. 
Mercia was occupied as a result of many independent expedi¬ 
tions of the Angles. Northumbria and East Anglia were 
the result of many similar independent migrations . 1 

These expeditions were really migrations of entire tribes, 
including men of all classes, women and children, slaves, cattle, 
and goods. At the head of each expedition was its chief, the 
most renowned of the principes, or magistrates, of the pagi, 
or Germanic subdivisions, included in the migration, with his 
retinue of followers, or comitatus. The host, or army of 
fighting men, was made up of the other leaders or magistrates, 
each with his comitatus of fighting men, and the “hundreds” 
of warriors, each pagus contributing its hundred. In the 
larger expeditions, there must have been a migration of all 
the people, high and low, free and servile, from a very con¬ 
siderable territory, including many pagi of the Angle and 
Saxon country . 2 On completing their conquest of the Britons 
in the part of England attacked by the expeditionary force, 
a regular apportionment of the land and houses of the ousted 


§3. 1 The earliest expeditions 

were piratical attacks made in the 
third century during the Roman 
occupation. The “Saxon shore” of 
this period was that part of the 
coast subjected to attack by Saxon 
pirates. See Freeman, Norman 
Conq., I, II. 

The Britons seem to have been 
so weakened as a result of Roman 
occupation and withdrawal, that 
their conquest by the Anglo-Saxons 
was a comparatively easy matter. 
As to the successive conquests re¬ 
ferred to above, see Bede, H. E., 


I, 13-15; Freeman, Norman Conq., 
I, 24, 25. 

The civilization and culture in¬ 
troduced by the Romans was ut¬ 
terly destroyed. Christianity dis¬ 
appeared; the cities were permitted 
to fall to ruin; the churches and 
great villas of the Roman time “be¬ 
came before the day of Bede mere 
haunted ruins.” Stubbs, Const. 
Hist. Eng. (4th ed.), I, 66; Kemble, 
Saxons, II, 297. 

2 No positive written evidence of 
the form of the expeditions exists, 
but the known facts establish these 


12 


HISTORY OF ENGLISH AND AMERICAN LAW 


Britons was made. We have no direct evidence of the method 
of this allotment; but, by inference from what we know of 
these settlements after records began, and from what we know 
of the character of the migration, and from what we believe 
to have been the organization and customs of these people 
at home before the migration, we can arrive at fairly safe 
conclusions as to what occurred. The migration of an entire 
tribe, or of a considerable part thereof, fully organized, with 
its leaders, armed forces, and organized communities, neces¬ 
sarily involved the transfer to the new settlements in the con-, 
quered country of the laws, customs, and organization of 
government and law which regulated their affairs in their 
former home. The allotment must have been made according 
to some definite plan worked out by the leaders, creating 
communities and districts corresponding to those which 
existed among them in Germany. Probably to each hundred 
warriors of the host was assigned a definite territory with 
natural boundaries, to be occupied by them and their families 
and all others in the expedition from the pagus, or district, 
from which the hundred was drawn. To those who formed 
a village community at home, made up of families bound 
together by relationship of blood and marriage or ties of 
neighborhood, was assigned a definite part of the larger dis¬ 
trict, varying in size with the number to be provided for; 
and in this a similar village community was established, with 
its central township of dwellings and outbuildings and their 


conclusions with reasonable cer¬ 
tainty. At the time of Bede, the 
Germanic country of the Angles 
was still a desert, establishing the 
completeness of their migration. 
Bede, H.E., I, 15. Mere bands of 
warriors without their families 
would have become assimilated with 
the native population and would 
have adopted the superior civiliza¬ 


tion, religion, and laws of the Brit¬ 
ons. The mere fact that the Anglo- 
Saxon laws, religion, and tribal or¬ 
ganization were transferred to and 
developed in England proves that 
the entire tribe came in families, 
with wives and children, slaves and 
cattle. See Stubbs, Const. Hist. 
Eng. (4th ed.), I, 69-71. 


ANGLO-SAXON LAW 


*3 


enclosures, its cultivated fields with the common-field system 
of husbandry already described as part of the Germanic mark 
system, its meadow field assigned in strips to the freeholders 
of the village, and its outlying common used as pasture and 
woodland by all in common. The larger district assigned 
to the hundred was probably divided for the most part into 
village communities of this kind. The amount assigned to 
each freeholder was probably one hide, or about one hundred 
and twenty acres, he holding in undoubted absolute ownership 
his house with its immediate plot, and holding, as owner of 
some sort, subject to the common-field method of agriculture 
and probably in some cases to reassignment among the house¬ 
holders of the village from time to time, the common fields 
of arable and meadow land . 8 

To the chiefs or magistrates with their retinues must have 
been assigned large independent tracts to be held entirely 
apart from the village community fields. No doubt the chief 
men, men of noble birth of the comitatus of the leader and of 
the lesser leaders or magistrates, who had won honor by their 


3 The degree of individual owner¬ 
ship of the freeholder in his strips 
of land in the fields of arable and 
meadow land in Germany shortly 
before the migration, and for the 
century and a half while the migra¬ 
tion was in process, and for a con¬ 
siderable time thereafter, must al¬ 
ways be a matter of mere guess¬ 
work. Some way or another, the 
common-field tenure of the com¬ 
munity was giving way during 
these two centuries or more to indi¬ 
vidual ownership in the modern 
sense; and, when our written evi¬ 
dences of Saxon law in England 
start, there is little doubt that indi¬ 
vidual ownership was established as 
the generally prevailing rule. At 


a comparatively early date in the 
Saxon period, therefore, the village 
freeman must be regarded as hold¬ 
ing his strips of land as owner, sub¬ 
ject to the incidents arising out of 
the common-field system of agri¬ 
culture which persisted to a surpris¬ 
ing degree down to comparatively 
modern times. See Digby, Hist. 
Law Real Prop. (5th ed.), 5-9; 
Stubbs, Const. Hist. Eng. (4th ed.), 
I, 76-78; Holdsworth, Hist. Eng. 
Law, II, 50, 51. Traces of the prac¬ 
tice of reallotting strips of the ara¬ 
ble or meadow land are found in 
much later times. See Coke on 
Littleton, 4a; Pratt v. Graeme, 15 
East 235. 


14 


HISTORY OF ENGUSH AND AMERICAN DAW 


warlike deeds, were rewarded by assignments of parcels of 
land to be held by them in absolute ownership. 4 That an 
assignment of land proportionate to his position was made 
to the supreme leader of the expedition who became king 
of the new country, is an inference which the facts within 
our knowledge clearly require. 5 Therefore a considerable 
part of the land must have been allotted originally in estates 
of greater or less extent to leading men of the expedition.® 

The many small principalities growing out of the many 
separate and independent expeditions of the Angles and 
Saxons were governed by much the same system which had 
regulated their affairs in Germany. Some sort of local 
assembly of the freemen of the village regulated purely local 
affairs, and elected the representatives of the villages in the 
court of the hundred. The “hundred” came to be the term 
applied to the larger district assigned originally, we may 
fairly infer, to the hundred warriors of the host; and the 
hundred court, made up of men elected from each of the 
villages of the hundred, corresponded to the court of the 
pagus in Germany described by Tacitus. The headman of 
the hundred was the presiding officer of the court, and corre¬ 
sponded to the princeps or magistrate of the German pagus. 1 
Instead of the Saxon national assemblies, there were sub¬ 
stituted in England the king and the witanagemot. The laws 
and customs administered by the courts were those brought 
with them from Germany uninfluenced to any material extent 
by the laws and customs of the vanquished Britons. 

As each of these smaller states took form, a king seems 
to have been chosen, this being the most radical change from 
their form of government as it existed in Germany before 
the migration. The national council, or assembly, of each 

4 Stubbs, Const. Hist. Eng., I, • Stubbs, Const. Hist. Eng. (4th 
?8, 79. ed.), I, 80. 

8 Digby, Hist. Low Real Prop. 7 Stubbs, Const. Hist. Eng. (4th 
(5th ed.), 9, 10. ed.), I, 88, 89, 90, 103-110. 


ANGLO-SAXON LAW 


15 


of the original Anglo-Saxon states was the forerunner of 
the folk-moot of the shire of later times, made up of the chiefs 
or lords to whom separate grants had been made as described 
above, and representatives of the freemen elected by each 
village assembly and of each hundred elected by the hundred 
court. This national assembly chose the king, who must have 
originally combined the most exalted nobility of birth with 
the greatest powers of leadership in the tribe. Though kings 
continued to be elected during the Anglo-Saxon period, the 
selection was usually limited to members of the same royal 
house. The king’s powers during this early time could not 
have been great, the real powers of government being in the 
national council, or folk-moot, of the tribe. 8 


§4. Development of Saxon Government and Courts of 
Law .—The first step forward took place through the gradual 
union of the many small states into seven larger kingdoms. 1 
The national assembly of the smaller state became the folk- 
moot of the shire, the county court of later times. The king 
of the smaller state became the ealdorman of the shire. 2 The 
king of each of the seven larger kingdoms had a position of 
far greater authority and importance than the kings of the 
smaller states. The national council of the greater kingdom 
developed as the witanagemot, or assembly of the wise men, 
of the nation. 

As the nation became larger, it was probably found to be 
impracticable to carry forward the principle of popular rep- 


8 See Stubbs, Const. Hist. Eng. 
(4th ed.), I, ch. 6. 

§4. 1 Stubbs, Const. Hist. Eng. 
(4th ed.), I, 187-192. 

2 As to the relationship of the 
ealdorman to the royal houses of 
the merged kingdoms, see Stubbs, 
Const. Hist. Eng. (4th ed.), I, 177, 
178. Where the royal house had 


become extinct, or was overthrown, 
an ealdorman was nominated for 
the shire by king and witan. Though 
the office was theoretically appoint¬ 
ive, it was actually hereditary for 
the most part, succeeding ealdor- 
men being regularly appointed from 
the same family. 


16 HISTORY OF ENGLISH AND AMERICAN LAW 


resentation by forming the national council of elected repre¬ 
sentatives from the townships, hundreds, and shires. At any 
rate, the witanagemot was not composed of elected representa¬ 
tives, but was made up of the ealdorman of the shires, the 
bishops of the dioceses into which the kingdom was divided, 
and the king’s thegns or ministers, this class being made up 
of the most eminent ministers of the king’s household and 
the most important of his personal followers who had become 
lords of great estates by book or charter from the king and 
witan. The number of persons in the witanagemot was never 
large, increasing in size as the power of the king increased, 
the proportion of the king’s thegns or ministers growing 
gradually with the development of royal power. 3 

When the union of the seven kingdoms into a single nation 
was accomplished, there was simply a further extension of 
the same process. The king’s power was enhanced propor¬ 
tionately. The witanagemot of all England was made up 
of the same elements of which the witanagemots of the seven 
kingdoms were composed, the number of each class being 
increased because of the increased size of the kingdom. 4 

We shall trace first the development of the hundred court. 
It was attended by the parish priest, the reeve, and four addi¬ 
tional chosen representatives of each township, and also by 
lords or their stewards within the district to whom separate 
estates had been granted in the original distribution or later 
by the king and witan. It had jurisdiction over crimes and 
private disputes arising within its district. No person could 
take his case to the shire court or to the king and witan unless 
he had been refused justice in the hundred court. 5 There 
seems to be no doubt that in many cases, increasing in number 
and importance as time went on, the jurisdiction of the hun¬ 
dred court was granted by the king and witan to private 

8 Stubbs, Const. Hist. Eng. (4th 4 Stubbs, id., I, 140. 
ed.), I, 138 et seq. 8 Stubbs, id., I, 112-118. 


ANGLO-SAXON LAW 


17 


persons, the terms sac and soc being applied to these private 
rights of jurisdiction. The majority of these grants were 
made to churches as incident to grants of the land of the 
district within which these rights of jurisdiction were to be 
exercised; but many grants were made to great land-owners 
who were therefore lords of the territory included in the grant, 
magistrates presiding over the court administering law to 
the people residing therein, and entitled to the profits arising 
out of the enforcement of law by the courts. These private 
jurisdictions became in practical effect hundred courts of 
greater or less extent, the machinery of the original hundred 
court being retained, under the magistracy of the lord.® Pri¬ 
vate jurisdiction of this sort had developed by the close of 
the Saxon period so as to cover a large part of local jurisdic¬ 
tion, making easy the development of the manorial court 
during the feudal period following the Norman Conquest. 7 

The shire and its court developed for the most part from 
the smaller original Anglo-Saxon kingdoms upon their amal¬ 
gamation into the seven larger kingdoms, as stated above. It 
contained a number of hundreds, the number being greater 
or less as it happened in the original emergence of the shire. 
The chief man of the shire was the ealdorman who was the 
military leader of the armed forces of the entire shire, includ¬ 
ing the men on church lands and the lords and their followers 
having private jurisdiction as well as the men of the hun¬ 
dreds. He sat as a member of the shire court, and, as a 
national officer, received one-third of the profits of the court. 
He was chosen by the king and zuitan, not by the shire over 
which he ruled, though in practice the office became hereditary 
for the most part.* The sheriff was the presiding officer of 
the shire court, the representative of the king for the purpose 

•Stubbs, id., I, 119, 120; Digby, 8 Stubbs, Const. Hist. Eng. (4th 
Hist. Law Real Prop. (5th ed.), 14. ed.), I, 122-126. 

7 Digby, id., 27, 28. 


18 HISTORY OF ENGLISH AND AMERICAN LAW 

of local administration of the folkland and royal demesne, 
and the executive officer by whom judgments of the court 
were enforced. He was strictly an officer or steward of the 
king and nominated by him. 9 

The shiremoot was held twice a year. Besides the ealdor- 
man and sheriff, its members consisted of the bishop and the 
lords of private estates throughout the shire, the reeve and 
four men from each township, and all public officers. A com¬ 
plainant could not apply for relief to the shire court until he 
had been thrice denied relief in his hundred court. The king 
could not be appealed to unless the court of the hundred and 
of the shire had both failed to do justice in the particular case. 
There was a central committee of twelve thegns in the hundred 
court as well as the shire court, who were probably selected 
as being most proficient in the law, and through whom most 
of the judicial business of the court was, in all probability, 
transacted. The shire system was not completed until all 
the seven larger kingdoms became finally merged under a 
single king. 10 

It is probably true that the original division among the 
Anglo-Saxons was personal rather than territorial, the hun¬ 
dreds being divisions of the tribe or nation rather than tracts 
of land with definite boundaries. However, the hundred soon 
became a territorial division, as was the shire from the time 
it first emerged, following the merger of the smaller kingdoms 
into the seven larger kingdoms. It is difficult to see how 
the idea of territorial division could have been entirely absent 
in the original hundreds and townships, if we accept the infer¬ 
ence that the hundred was a district with definite bounds 
assigned to people migrating from a corresponding district 
in their former home in Germany, and that the townships 
were formed by a definite scheme of allotment of the district 
to communities bound together in Germany by ties of kindred 


* Stubbs, id., I, 126, 127. 


19 Stubbs, id., I, 128-132. 


ANGLO-SAXON LAW 


19 


and neighborhood association. Though division of the people 
or tribe was probably the predominating idea in the earlier 
time, the idea of territorial division could never have been 
entirely absent. As the seven greater nations were gradually 
formed out of the many original states arising from the differ¬ 
ent migrations, and as England as a single state took form 
through union of the seven nations, these divisions became 
strictly territorial divisions for the administration of govern¬ 
ment and law. 11 

£5. Anglo-Saxon Real Property Law .—The law of the 
Anglo-Saxons was almost entirely pure customary law, handed 
down from generation to generation by word of mouth, admin¬ 
istered in a rude and primitive way by the people themselves 
through the courts of the hundred and the shire, without 
written records or skilled lawyers or judges. The men who 
made up these courts were mostly ordinary freemen, rough, 
uneducated, very few of whom could read and write. The 
law of property is the law governing its ownership and enjoy¬ 
ment. Land was owned and enjoyed during this period in 
accordance with this customary law, almost exclusively; and, 
in the almost total absence of written record of this mass of 
custom, it is a difficult and very uncertain process to express 
in any concrete way the system of land ownership that existed 
prior to the Norman Conquest. 

By inference and deduction more or less reasonable, we 
have concluded that, in the original settlement, the land was 
divided among the invaders by some regular scheme of allot¬ 
ment, new communities being formed corresponding to the 
communities which existed in Germany prior to the migration. 
We know that the common-field system of the Germanic village 
community prevailed during the Anglo-Saxon period. We 
are safe in inferring, however, that a considerable part of 


11 Stubbs, id., ch. 7, 183-185. 


20 


HISTORY OF ENGLISH AND AMERICAN LAW 


the land allotted in the original division consisted of private 
estates of varying size allotted to the chief men, the magistrates 
and leaders of the migrating tribe, the leader of the expedition 
receiving the largest tract as king of the new state, and the 
lesser leaders receiving smaller tracts proportioned in some 
way to their importance and the size of their households and 
retinues. It is also a reasonable inference that the men of 
noble birth who were the followers of these chief men were 
assigned separate tracts which they held and enjoyed in sev¬ 
eralty. We know that the common-field system of agriculture 
prevailed throughout the greater part of England during the 
Saxon period and for a long time thereafter. But the common- 
field or community tenure of the early German village com¬ 
munity had probably, for a time prior to the migration, been 
gradually giving way to separate individual ownership by the 
tenant of his strips in the cultivated fields, subject, however, 
to the common-field method of agriculture; and this gradual 
change had progressed so far, when we get our first records, 
that individual ownership by the village freemen had become 
the rule. 1 No doubt community tenure continued in many 
places for a long time thereafter; in fact, we find evidence 
of reallotment of the common fields having been practiced as 
late as the time of Coke.* But this is of no real importance 
in the history of the law, as, in practical effect, it ceased to 
exist at an early date and had no effect whatever upon the 
subsequent development of the law. Individual ownership, 
whether of the chief men in separate tracts or by ordinary 
village freeholders of farms in scattered strips in the common 
fields, has been, from the beginning of recorded history of 


§5. 1 “Without conjecturing how 

the change took place, we may safe¬ 
ly assume that, although traces still 
remain of common-land tenure at 
the opening of Anglo-Saxon his¬ 
tory. absolute ownership of land in 


severalty was established and be¬ 
coming the rule.” Stubbs, Const. 
Hist. Eng. (4th ed.), I, 80. See § 3, 
note 3, ante. 

2 See Coke on Littleton, 4a; Pratt 
v. Graeme, 15 East 235. 


ANGLO-SAXON LAW 


21 


English law, the prevailing kind of holding of land in con¬ 
nection with which the law has developed. We have, therefore, 
the occupied part of the country taken up by village communi¬ 
ties holding by the common-field system, and private individual 
estates, great and small, all subject to the customary law 
administered by the courts of the hundred and the shire. 

Folklcmd is the term applied to all land held in these ways 
under the customary law. By far the greater part of it was 
land held by village freemen subject to the common-field 
method of agriculture; and, to that extent, its ownership 
was limited by the customary rights of the community. That 
it descended to the heirs of the owner, his sons, on his death 
in equal shares, there can be no doubt. 8 We know little or 
nothing of the rules of law which determined the incidents 
of the ownership of folkland; but, in view of what we find 
existing after the Conquest, the inference is unavoidable that 
the freeholder could convey his land subject to restrictions, 
concerning the details of which we know nothing definitely, 
in favor of his heirs. The heirs could not be disinherited by 
conveyance of folkland or by disposition of it by will. At 
least part of it, particularly where it had been inherited by 
the owner, could not be conveyed without the consent of the 
presumptive heirs of the owner. We know that this law 
restricting alienation continued down to Glanville’s time; but 
we have no information of the details of this restriction except 
Glanville’s statement of these rules as they existed over a hun¬ 
dred years after the Norman Conquest. 4 Nevertheless, the 
general power of alienation which we find existing after the 
Conquest, subject to these restrictions in favor of heirs only, 
with no suggestion of the necessity of consent of the king 
and his court, or other restraint of any kind which could be 

3 Poll. & Mait., Hist. Eng. Law, 4 See §37 post, and extract from 
I, 40; Digby, Hist. Law Real Prop. Glanville, note 1, thereunder. 

(5th ed.), 29, 100, 101. 


22 


HISTORY OF ENGLISH AND AMERICAN LAW 


regarded as a survival of Saxon law, leads strongly, we may 
say irresistibly, to the conclusion that folkland could be con¬ 
veyed, probably with some sort of ceremony involving formal 
renunciation by the donor and formal taking of possession 
by the donee, in the presence of neighbors through whom 
the transaction could subsequently be proved. 6 

Bookland, or bocland, is the term applied to estates created 
by book, or charter executed by the king with the concurrence 
of the witan, to churches or great men. Their use was intro¬ 
duced by the church after the conversion of England to Chris¬ 
tianity in the seventh century, and the earlier books which 
have come down to us are mainly grants of land to churches. 6 
In the latter centuries of the Saxon period, they were used 
freely by the king in granting land to the great and powerful 
among the king’s thegns, as well as to churches. They show 
a steady progress toward territorial lordships in England as 
explained in the following section. These grants were made 
out of the great reservoir of unappropriated land which 
belonged to the nation and which eventually came to be 
regarded as terra regis, land of the king, which he could dispose 
of as he pleased, with the actual or nominal concurrence of 
the witan. The development of territorial lordships, discussed 
in the next section, by which most of the village communities 
were eventually brought under a lord before the close of the 
Saxon period, undoubtedly resulted in books, or charters, by 
which the king granted jurisdiction and other incorporeal 
rights over land held allodially under the customary law, viz., 
folkland, as well as unoccupied land. Thus bookland was at 
the same time folkland, the occupiers paying their rents or 
other dues thereafter to the lord instead of to the king, and 
the lord succeeding to the jurisdiction of the local hundred 
court with its profits. These books, or charters, therefore, had 

6 See §40 post, notes 5 and 6. • Holdsworth, Hist. Eng. Law, II, 

14, 58. 


ANGLO-SAXON LAW 


23 


to do with great estates held by churches and monasteries 
and by great lords, rather than with the creation and transfer 
of the estates of the ordinary freeholders who occupied and 
worked the land. The actual occupier must have held under 
the customary law in most cases. These written charters, 
therefore, transferred not only the land which the grantee 
took and held in demesne, but also all those incorporeal rights 
of lordship which he enjoyed over land included in the charter 
which were at the time in the possession of freeholders under 
the customary law. The important point to bear in mind 
is that they had to do rather with lordship, and the estates 
of the great and noble, than with the ownership of the usual 
freeholder in demesne, the owner in the modern sense. For 
that reason they have little relation with private as distin¬ 
guished from public law. The law of private ownership was 
almost entirely the customary law, and these charters give 
little direct aid to a discovery of what that was. 7 

The earlier view taken by Allen, followed by Kemble and 
others down to 1893, 8 was that folkland was the land of the 
folk or people, that is, community land belonging to the state, 
while bookland included all land held in private ownership. 
The difficulty with this explanation is that it takes no account 
at all of the most extensive and important class of owners, 
those holding by individual allodial ownership under the cus¬ 
tomary law. These men held by no book or charter, but by 
long continued possession going back in many cases, no doubt, 
to the original allotments made at the time of the migration. 
It is obviously absurd to regard them as mere tenants or occu¬ 
piers of state lands. In 1893, it was pointed out that the word 
folcland as used in Saxon documents did not necessarily have 
any such meaning, and the writers generally fell back to the 

7 Poll. & Mait., Hist. Eng. Law, 8 Allen, Royal Prerogative, 125- 
I, 38-40; Holdsworth, Hist. Eng. 153; Kemble, Saxons, I, 289; Stubbs, 
Law, II, 58-60. Const. Hist. Eng., I, 80-82. 


24 


HISTORY OF ENGLISH AND AMERICAN LAW 


position taken by Spelman over a century ago, that folkland 
includes all land held by owners under the customary law, 
without book, or charter, bookland being limited to lands held 
by book, or charter. 9 

The book, or charter, provided usually, probably always, 
that the holder could convey at pleasure and also devise the 
property by will. The power to convey and devise the prop¬ 
erty, therefore, was expressly given by the instrument creating 
the estate. The delivery of the original book, perhaps accom¬ 
panied with some form of corporeal delivery of possession of 
the land, was the way in which the property was conveyed. 
A new book or deed was not required or used. 10 Estates 
created in this way were allodial estates, that is, absolute 
estates held of no superior. Except in the extent of the land 
conveyed, and the difference in the method by which the estate 
was created, there is no good reason to believe that they dif¬ 
fered radically from allodial estates of inheritance existing by 
customary law without book, or charter. Of course the express 
provision in the book permitting alienation and disposition 
by will prevented any restraint thereon in favor of the heirs. 
But there is no good reason to believe that the right to convey 
or devise depended on these provisions. The better view is 
that, like the customary allodial estate, bookland could also 
be conveyed or devised without provision in the book to that 
effect, but, in that event, probably subject to the rules pro¬ 
tecting the heirs above referred to. 11 Bookland passed to the 


9 Vinogradoff, Folk-Land, in Bng. 
Hist. Rev., VIII, i-i7, (1893) 5 Poll. 
& Mait., Hist. Eng. Law, I, 39; 
Holdsworth, Hist. Eng. Law, II, 58. 

10 Digby, Hist. Law Real Prop. 
(5th ed.), n-14; Poll. & Mait., 
Hist. Eng. Law, I, 37-38; Pollock, 
Land Laws (2nd ed.), ch. 2. 

11 This is based on the inference 
that, in the absence of express pro¬ 


vision in the book or charter, the 
customary law would apply; and 
the condition of things found after 
the Conquest makes the conclusion 
reasonably certain that absolute 
allodial estates could be conveyed 
and devised under the customary 
law, subject to the restrictions in 
favor of heirs already referred to. 
See discussion of folkland, ante. 


ANGLO-SAXON LAW 


25 


heirs on the death of the owner intestate, generally to all the 
sons in equal shares, though the laws of inheritance varied 
somewhat in different parts of England. 12 

During the entire Saxon period, a very considerable part 
of the country remained unappropriated either as bookland 
or by absolute owners under the customary law. There seems 
to have been a very considerable class of tenants who settled 
on this land without acquiring absolute title by allotment or 
otherwise, and who paid rent or other return to the state, viz., 
to the king as the representative of the state. Holders of 
this sort had at most only life estates, could not convey or 
will the land without the consent or ratification of king and 
witan, and were in all respects mere temporary tenants of 
state or public lands. It was part of the duties of the sheriff 
of the shire to collect rents and dues from these tenants, which 
furnished a large part of the public funds for the expenses 
of government. No doubt their holdings were under the 
customary law, and land so held was folkland. 13 Mr. Digby 
refers to a will of the latter part of the ninth century in which 
the testator, after disposing of his bookland, requests the king 
to allow his son to succeed to his folkland, but if not, he gives 
his son the equivalent in bookland. There are also several 
instances collected in Kemble, Saxons in England, where 
testators requested the king to allow their gifts by will to 
stand. Mr. Digby argues that this shows that, in all prob¬ 
ability, the owner of folkland could not alienate or devise 
except with the consent of the king. 14 Cannot these wills be 


Bookland estates were grants of 
public lands made by the state. 
Allodial estates going back to the 
original allotment or arising under 
the customary law thereafter are 
based on the same title, viz., lands 
of the state acquired by individuals, 
whether lords or not, pursuant to 
the law. See authorities referred 


to in the preceding notes under this 
section. 

12 Poll. & Mait., Hist. Eng. Law, 
I, 40. 

13 Stubbs, Const. Hist. Eng., I, 82. 

14 Digby, Hist. Law Real Prop. 
(5th ed.), 15, 16, citing Cod. Dipl., 
cccxvii; Kemble, Saxons, I, 181, 
note I. 


26 


HISTORY OF ENGLISH AND AMERICAN LAW 


explained by saying that the folkland referred to as requiring 
the king’s consent to alienation was public land of the class 
here described held by mere tenants of the state? It cannot 
for a moment be admitted that the great class of freehold 
owners holding absolute allodial estates under the customary 
law were so far mere tenants of the king that they could not 
convey or devise without his consent. That was the great 
difficulty with the theory of folkland as mere public land, land 
of the state. It did not explain the most important class of 
all, the great class of community or individual freeholders who 
actually occupied and worked most of the land in England 
apart from the waste. The Norman Conquest made no great 
change in the private property rights of these men. The change 
effected was principally in the rights of lordship incident to 
feudalism. 18 The freehold ownership with power to convey, 
which we find a comparatively few years after the Conquest, 18 
unquestionably existed prior to the Conquest, probably during 
the greater part of the Saxon period; and it is utterly absurd 
to limit this to bookland, which, as we have seen, related princi¬ 
pally, almost exclusively, to the property and seigniorial rights 
of churches and great men, the mesne lords of the feudal period 
being the successors of owners of bookland. 17 

We cannot put to one side this matter of private ownership 
by the assertion that it belongs to the subject of German 
antiquities. 18 All authorities admit that the ordinary freehold 
owner who possessed and worked his land after the Conquest 
held and enjoyed it without substantial change except such 
as was incident to a change of lordship. Therefore the law 
of private ownership which governed the Saxons at the time 
of the Conquest and before, is part of an unbroken chain of 
customary law, developing or changing with changed condi¬ 
tions, varying widely in different parts of the country, before 

18 See §n, post. is See Poll. & Mait., Hist. Eng. 

16 Six. post; also §37, post. law, I, 39. 

1T See §12, post. 


ANGLO-SAXON LAW 


27 


and after the Conquest, but essentially of the same nature up 
to the time when it finally evolved into the common law in 
the second hundred years following the Conquest through the 
development of the King’s Court. 

Laenland, created by the laen, or loan, was a grant of land 
for temporary use, made usually by the church or other holder 
of bookland, just as the book, or charter, creating bookland 
estates was usually made by the king. During the latter part of 
the Saxon period, both books and loans were used by holders of 
bookland to create subordinate interests. Professor Maitland 
regards bookland as corresponding to land held by tenants-in- 
chief and laenland to land held by mesne lords of the feudal 
period. 19 This is borne out by the Saxon Laws, which indicate 
a direct relation between the king and the holder of bookland, 211 
and also by the fact that all the books of the earlier period 
and most of those of the later period were made by the king, 
while the laens, or loans, coming into use at a later time than 
books, or charters, were evidently drawn by the churches and 
other holders of bookland in imitation of the king’s charters, 
and so far as they have come down to us, were used to create 
subordinate interests in great men, who were not the immedi¬ 
ate occupiers and cultivators of the soil. These loans ran for 
from one to three lives; sometimes rent was reserved; some¬ 
times a lump sum was paid for the loan; sometimes other 
services had to be rendered in return for the use of the land. 21 

According to Mr. Digby, the legal effect of a loan was to 
give the tenant the usufructuary enjoyment of the land rather 
than ownership. 22 We may very easily infer, though there 


19 Maitland, Domesday Book and 
Beyond, 314. 

20 Laws of Ethelred, I, 14; Cnut, 
(Secular), 13, 78, cited in Holds- 
worth, Hist. Eng. Law, II, 62. 

21 Holdsworth, Hist. Eng. Law, 
II, 60-62. 


22 Digby, Hist. Law Real Prop. 
(5th ed.), 16, citing Cod. Dipl., I, 
lxii; Case of Helmstan, Kemble, 
Saxons, I, 311. "It seems that the 
laen was in this country rather the 
precursor of the lease or leasehold 
than of the feudum or beneficium. 


28 


HISTORY OF ENGLISH AND AMERICAN LAW 


is no direct evidence on the point, that a loan could be made 
by parol to a cultivator of the soil who would work it and 
pay a rent in money or in produce for the use of the land. 
The corresponding tenancies of state lands referred to above, 
and the fact that this would be an easy and natural way for 
any owner of land, whether by book or charter, under the 
customary law or by laen from a lord of bookland, to have 
his land worked at a profit to himself, tend strongly to sustain 
this inference. We should know nothing of them; for, at 
that time, writings would hardly be made, or preserved if 
made, in connection with interests of such comparatively small 
importance. If so, these interests may well be regarded as 
the forerunners of leases for years of the later time. It is true 
that written leases, before and for a long time after the Con¬ 
quest, were investments made by the wealthy and powerful, 
so far as they have been preserved. However, parol leases 
for short terms by husbandmen might well have existed quite 
commonly before and after the Conquest down to the end of 
the twelfth century without written evidence of them being 
preserved. It is very difficult to find that there was anything 
like a general holding of laenland just before the Conquest 
by a class corresponding to the mesne lords shortly after the 
Conquest. There ought to be positive evidence of this con¬ 
nection through Domesday and other sources if it existed. 
It is more probable that the holder of laenland was an investor 
of capital like the wealthy tenants for years during the early 
feudal period, 23 rather than a mesne lord, though either con¬ 
clusion is mere conjecture. 

§6. Development of Territorial Lordships. —The relation 
of lord and man existed among the original Anglo-Saxons 
in the form of the relation between the chief and his comitatus. 

In Germany, however, lehn — 2* See §32, post; also Poll. & 

feudum, lehnrecht — feudalism.” Mait., Hist. Eng. Law, II, 116, 117. 
Digby, id., note 5. See preceding note. 


ANGLO-SAXON LAW 


29 


or body of followers, already described. The original allot¬ 
ment of separate estates to the chiefs and subchiefs of the 
invading forces must have involved from the beginning the 
establishment practically of many territorial lordships. As 
the small states merged into the greater Anglo-Saxon states, 
and as the single nation finally emerged through the union 
of all, there was a constantly increasing number, actually and 
relatively, of great landed proprietors, lords of extensive 
domains. The practice of granting extensive tracts out of 
the waste land of the nation by king and witan to churches 
and to the king’s thegns or ministers, great men of the nation, 
must have multiplied many times the number of these great 
estates . 1 

There can be no doubt that the small estates of the poorer 
freemen were being merged constantly in the great estates 
of these territorial lords. By the close of the Anglo-Saxon 
period, we know that by far the greater part of the country 
was held in this way . 2 

The actual occupation and enjoyment of such a district 


§6. 1 Digby, Hist. Law Real Prop. 
(5th ed.), 18, 19, 21-25; Stubbs, 
Const. Hist. Eng. (4th ed.), 206-208. 

2 The process of commendation, 
by which the small freeholders put 
themselves under the protection of 
a great lord, holding their property 
from him subject to dues and serv¬ 
ices in return for his protection, 
accounts for much of this. Domes¬ 
day Book establishes that, at the 
time of Edward the Confessor, 
there was a large class of freemen 
who had done this. Ellis, Intro, to 
Domesday, I, 64-66; Stubbs, Const. 
Hist. Eng. (4th ed.), 207, and note. 

As pointed out by Stubbs {Const. 
Hist. Eng.. I, 207), the development 
of the courts and the enforcement 


of the law through a territorial sys¬ 
tem based directly on land-owner¬ 
ship, tended strongly to develop the 
institution of lordship over land. 
As stated by Stubbs: “When every 
man who was not, by his own free 
possession of land, a fully qualified 
member of the commonwealth, had 
of necessity to find himself a lord, 
and the king had asserted for him¬ 
self the position of lord and patron 
of the whole nation; when every 
free man had to provide himself 
with a permanent security for his 
own appearance in the courts of 
justice, of which the king was the 
source, and for the maintenance of 
the peace, of which the king was 
the protector; when every thegn 


30 


HISTORY OF ENGLISH AND AMERICAN LAW 


assumed a form closely resembling the manor of feudal times. 
A large tract was set aside as the private domain of the chief 
or lord. On this was erected his principal house, the manor 
house of later times. This land was worked by his serfs and 
in part, in many cases, by poor freemen without land, who 
worked for hire or in return for land held by them subject 
to such service. The rest of the tract was held by the lord’s 
men, originally his or his ancestors’ followers or retainers, 
to whom had been granted definite portions to be held subject 
to the duty of paying a rent or other return to the lord. Over 
these portions, he had no right of ownership, but rather a 
right of lordship to these rents and returns from the land . 3 
In cases of grants of bookland out of the public land of the 
state, it is probable that much of the land would be already 
occupied by tenants holding from the state, in village com¬ 
munities and individual estates. These would continue to 
hold as before, paying rent or other returns for their land 
to the lord instead of to the king . 4 


aspired to sac and soc, and the king 
alone had socu over his thegns and 
the owners of bookland; the rela¬ 
tion of the small landholder to the 
greater or to the king, and the rela¬ 
tion of the landless man to his lord, 
created a perfectly graduated sys¬ 
tem of jurisdiction, every step of 
which rested on the possession of 
land by one or both of the persons 
by whose relations it was created. 
The man who had land judged the 
man who had not, and the constant 
assimilation going on between the 
poor landowner and the mere cul¬ 
tivator of his lord’s land, had the 
result of throwing both alike under 
the courts of the great proprietors.” 

3 Digby, Hist. Law Real Prop. 
(5th ed.), 24, 25; Hale, Introduc¬ 
tion to the Domesday of St. Paul. 


p. xxx, ( Publications of Camden 
Society). Quoting from the note 
in Digby, p. 25: “In the Domesday 
of St. Paul’s, we find that prae- 
dial services were due from three 
classes of persons, called villani, 
cotarii, bordarii. In the Rectitu- 
dines [Ancient Laws & Institutes, 
432 ], (placed by Thorpe next after 
the laws of Cnut), we find praedial 
services due from villani, cotsetle, 
geburi. The villani are serfs at¬ 
tached to the hides of land on 
which they live; the cotarii and 
bordarii are identical with the cot¬ 
setle and geburi, and are cottagers 
with still smaller holdings than the 
villani, and bound to lighter serv¬ 
ices." 

4 See §5, notes 8 and 10 there¬ 
under. 


ANGLO-SAXON LAW 


31 


The relation of lord and man developed to such a degree 
that in the early part of the tenth century, a statute of Aethel- 
stan 5 provided that if a man had no lord who would be respon¬ 
sible for him, his kindred must find him one; if not, he might 
be dealt with as a dangerous person . 8 Thus, nearly one hun¬ 
dred and fifty years before the Norman Conquest, every man 
had to have a lord, and all persons, lords and men, recognized 
the general overlordship of the king. 

Therefore the personal relation of chief or leader and his 
comitatus, or group of personal followers, having at most 
only an incidental relation to landholding, and affecting only 
a comparatively small number of persons, developed so that, 
during the latter part of the Anglo-Saxon period, the entire 
social order was included in the relation of lord and man, 
and the relation itself, instead of being merely personal, had 
become identified with ownership of land, at least to the extent 
of the relations existing between lords of bookland and other 
great estates and the people who actually occupied and worked 
the land included in these extensive territories. 

The waste or public land of the state, though subject to 
the king’s disposition only with the approval or confirmation 
of the witan, had come to be regarded as the king’s land (terra 
regts) during the later Anglo-Saxon time. The waste land 
in districts held by territorial lords was treated as individual 
property from which grants to vassals or followers might be 
made. The customary rights of pasturage and the like existing 
in the people of the neighborhood, originally community rights 
in community property, came to be regarded as incorporeal 
rights in the land of the lord. Thus the king came to be 
regarded as the lord of the kingdom, and the territorial lords 
as lords over the districts within their dominion. A system 
had become established, therefore, prior to the Norman Con¬ 
i' Aethelst., II, 2. I, 6; Digby, Hist. Law Real Prop. 

* Poll. & Mait., Hist. Eng. Law, (5th ed.), 24-28. 


32 


HISTORY OF ENGLISH AND AMERICAN LAW 


quest, which was feudal in practical effect, though not in name. 
Conditions were ripe, at the time of the Conquest, for the intro¬ 
duction of the feudal system in theory and law as well as in 
practical effect . 7 

It will be recalled that the right of jurisdiction was granted 
frequently, perhaps generally, to the lord, over the district 
booked to him, and that the court of the district was in prac¬ 
tical effect a hundred court under the leadership or magistracy 
of the lord, who received the profits growing out of the admin¬ 
istration of justice in the district. This was the forerunner 
of the manorial court of the feudal period following the 
Conquest . 8 

§/. Ranks and Grades of Men .—The great division of 
first importance was between the free and the unfree. This 
division goes back to our earliest evidences of Germanic cus¬ 
tom, and continues during the Anglo-Saxon time and for 
centuries after the Conquest. The development of the relation 
of lord and man between freemen during the Saxon time has 
already been outlined . 1 Its growth under feudalism will be 
discussed later. The distinction between the noble by birth 
and the ordinary freeman, which existed among the Anglo- 
Saxons before the migration, was continued in England. The 
nobleman was called an eorl, the ordinary freeman a ceorl, 
or churl. Differences in official rank have been referred to 
incidentally in tracing the development of territorial lordships . 2 
A member of the comitatus of the leader during the earlier 
period was called a gesith. By Alfred’s time, this term had 
disappeared. The household officers of the king were there¬ 
after called the king’s thegns, or thanes, and the same term 
was applied to the household officers of the ealdormen and 

7 See Digby, Hist. Law Real court, note 7 and text to which note 

Prop. (5th ed.), 26-28. refers. 

8 See §4, ante, as to the hundred §7. 7 See §6. ante. 

2 See §6, ante. 


ANGLO-SAXON LAW 


33 


other great men. By the tenth century, thegnship came to 
be the official term indicating rank above that of churl, and 
did not indicate an office of any kind unless the name of the 
office was expressly added. The king’s thegns had a higher 
rank than that of other thegns. The wergild of the thegn, viz., 
the amount which had to be paid to his kindred by a person 
causing his death, was six times that of the ordinary freeman, 
and his oath was equal to that of six freemen who were not 
thegns. Thegnship could be claimed as a legal right, it has 
been said, by a person having five hides of land (six hundred 
acres), a church and belfry, a “burgh-gate-seat,” and a special 
place in the king’s hall . 3 

The non-free were serfs, the property of their masters, 
more nearly the slaves of the Roman law than were the villeins 
following the Norman Conquest. Though the number of 
slaves was undoubtedly large, and though traffic in slaves 
existed, the selling of slaves beyond the seas, particularly 
the sale of Christian slaves to heathen masters, was discour¬ 
aged and restrained by statute and by the active opposition 
of the church . 4 Owners sometimes freed their serfs, and 
sometimes they were able to purchase their freedom, indicating 
that they must have had, in practice, the opportunity of acquir¬ 
ing property. We have no reason to doubt that the conditions 


3 Poll. & Mait., Hist. Eng. Law, 
I, 8-10; Digby, Hist. Law Real 
Prop. (5th ed.), 22, 23. 

4 Poll. & Mait., Hist. Eng. Law, 
I, 11, 12; Digby, Hist. Law Real 
Prop., 25, note. See §6, note 3, ante. 
The villani, cotarii, bordarii, re¬ 
ferred to by Digby as owing prae- 
dial services according to the 
Domesday of St. Paul's, occupied 
definite parcels of land, the villani 
occupying hides of land, the other 
classes being cottagers with smaller 
holdings and bound to lighter serv¬ 


ices than the villani. These men, 
occupying definite parcels which be¬ 
longed to them as against all but 
their lords, with the rights of free¬ 
men, speaking generally, except in 
their relation to their lords, were 
very far removed from slavery in 
the Roman sense. This distinction 
between mere slaves and serfs tied 
down to the land, who may be 
called servile tenants, goes back to 
the Germanic tribes of Tacitus, as 
we have seen. See §2, note 4- 


34 


HISTORY OF ENGLISH AND AMERICAN LAW 


found to exist after the Conquest existed in some form for 
a considerable time theretofore, and therefore that serfs occu¬ 
pied definite portions of their master’s land, occupying it in 
return for their labor in working on the demesne lands of 
the lord. 6 The nature and incidents of their holdings after 
the Conquest will be discussed in detail later.® 


§8. Crimes, Tort, and Contract in Anglo-Saxon Law .— 
The distinction between crimes, or offences against the public 
peace, and torts, or private wrongs to individuals, is to be 
found in the wite paid to the state and the wer paid to the 
person injured. The development of the law of crimes and 
torts was the growth of the power of the state to compel 
acceptance of regular legal remedies in the place of private 
vengeance. The development of the law in this respect had 
gone far even at the time of Tacitus; and there can be no 
doubt that the Anglo-Saxons brought with them a system of 
compensations for murder and other crimes of force, part 
to go to the state in atonement for the crime, and part to 
the kindred of the murdered man or to the person injured, 
in atonement for the private wrong. 1 The struggle was to 
compel injured persons to accept the regular legal remedy 
instead of taking the law into their own hands. Anglo-Saxon 
courts were very weak, with inadequate means of compelling 
a defendant to appear, or of enforcing a judgment after it 
had been rendered; and this weakness must have tended 
strongly to encourage self-help which the law was seeking 
constantly to overcome. 1 


8 See note 4 preceding. 

8 See §16, post. 

§8. 1 See Tacitus, Germ., chs. 12, 
2i, 22; Stubbs, Const. Hist. Eng. 
(4th ed.), I, 31, 32, note. 

2 Poll & Mait., Hist. Eng. Law, 
I, 27. This, as we shall see, con¬ 
tinued to be the dominating char¬ 


acteristic of the customary law of 
the manorial and county courts 
after the Norman Conquest, and 
led eventually to the displacement, 
in large measure, of the local courts 
by the King's Court, through which 
the common law, in the form of 
written decisions, finally emerged. 


ANGLO-SAXON LAW 


35 


Wergild, or zver* was the term applied to the value fixed 
on a man’s life, varying with his rank. A man’s zver was 
frequently the basis on which the amount of a fine for offences 
against public order, committed by him, was computed. Wite 
was the term used for public fines, the word bot including 
both public fines and private payments to individuals in satis¬ 
faction of private wrongs. The death penalty, for the more 
serious crimes not atonable in money, mutilation and other 
corporal punishments with a heavy fine as an alternative, were 
the only punishments for crimes apart from fines . 4 Imprison¬ 
ment was not used as punishment. Outlawry, by which a 
man was placed outside the protection of the law, resulting 
in forfeiture of his property to the king and in liability to 
death at the hands of any person with impunity, was used 
by the courts to compel an accused person to appear. Persistent 
failure to appear in court in answer to an accusation resulted 
in outlawry. A country without prisons and without a regular 
police force did not have the machinery required to compel 
the appearance of accused persons. If a person accused of 
crime persistently failed to appear or offered resistance to 
legal process, he was simply put outside the protection of 
the law . 5 Of course, outlawry was in itself a very severe 
punishment. 

Treason, whether to king or lord, was punishable by death, 
and could not be redeemed by money payment.® Homicide 
in open affray was atonable by money payment of the zver of 
the man slain; but hidden or secret murder, by poison, or 
the like, was punishable by death . 7 

Homicide was justifiable in all cases where the man killed 
was an outlaw, or a thief in flight, or an adulterer taken in 

3 Meaning “man’s price" or “man 5 Poll. & Mait., Hist. Eng. Law, 
payment.” See Poll. & Mait., Hist. I, 26, 27. 

Eng. Law, I, 25, note I. 8 Cnut, II, 64; Hen., 12. 

4 Poll. & Mait., Hist. Eng. Law, 7 Cnut, II, 56; Hen., 71, 92. 

I, 26. 



36 HISTORY OF ENGLISH AND AMERICAN LAW 

flagrante delicto, killed by the husband, father, brother, or 
son of the woman involved . 8 An elaborate scheme of fixed 
amounts for different personal injuries to be paid the injured 
person, was provided for. Where the injury resulted from 
negligence without voluntary act, there was no liability except 
in a few cases expressly provided for, as in negligently carry¬ 
ing a spear with the point dangerously lowered;* but, if the 
injury resulted from a voluntary act, though without inten¬ 
tional wrong or negligence, the person causing it was liable 
to pay the amount fixed, though today there would be no 
liability in such cases of mere accident without negligence . 10 

Theft was the most common crime; and the law of personal 
property during the Anglo-Saxon period is concerned princi¬ 
pally with the prevention of theft, particularly of cattle and 
horses. On discovering the theft, the owner or bailee was 
required to follow the trail, assisted by his neighbors, and 
if the thief was captured with the cattle in his possession, 
he was not permitted to deny the theft; he was punished as 
a thief and the cattle were turned over to the owner. If the 
trail led to a man’s land and did not lead out again, it was an 
accusing fact which he must clear away. If the trail was 
lost, but later the animal was found, the owner recovered it 
at once unless the possessor explained how he had obtained 
possession. If the possessor claimed that he had bred and 
raised the animal, the issue would have to be tried in court 


* Poll. & Mait., Hist. Eng. Law, 
I, 30- 

9 A elf., 36. 

10 Poll. & Mait., Hist. Eng. Law, 
I, 33; II, 156. The primitive state 
of the law of liability during this 
period is well illustrated in these 
cases. Thus, as stated by Professor 
Holdsworth (Hist. Eng. Law, II, 
42), if a man left his arms exposed 
and another fell over them, or 


loaned another a horse, and the 
borrower of the horse was injured 
while using the horse, though with¬ 
out negligence on the part of the 
owner, he was nevertheless liable. 
Leg. Hen., 87: 1, 2; 90: 11. If B 
attends A at A’s request, and while 
so accompanying him B is attacked 
by his enemies, A is liable. Leg. 
Hen., 88: 9. The feelings of the 
person injured, and the appeasing 


ANGLO-SAXON LAW 


37 


in the usual way. If he claimed that he had purchased from 
another, the owner was bound to swear to his ownership and 
that it had been stolen, the possessor swearing at the same 
time that he had purchased it from a person named by him. 
He was then required to produce this vendor before the court 
as his warrantor. On his appearance, the warrantor was 
accused. He could vouch another warrantor as the person 
from whom he purchased the animal, and finally by this 
process the thief was found, and the owner recovered his 
property. There was no separation of the criminal from the 
civil elements in the proceeding. The possessor could avoid 
conviction as a thief by proving purchase in open market 
before witnesses as provided by law; but the owner recovered 
his property nevertheless. This procedure, continued in the 
appeal of larceny after the Norman Conquest, was the only 
proceeding for the recovery of personal property of which 
we have any record during Anglo-Saxon times. In case of 
a bailment, the bailor probably had a remedy of some sort 
against the bailee refusing to return the bailed goods; but 
we know nothing of what it was, except by conjecture from 
the remedy found to exist at a later time. The proceeding 
above described had for its primary object the capture of the 
thief. The recovery of the stolen property was incidental. 
Where the thief was unable to make restitution, he might be 
punished by making him, and possibly the members of his 
family, slaves . 11 Common law larceny, developing after the 
Conquest, has very little connection with the larceny of this 
earlier time. 

The Anglo-Saxon law of personal property, like the law 
of real property, was part of the unwritten customary law 
administered in the courts of the hundred and the shire, of 

of them by the money payment law, not the guilt of the accused, 
fixed by law in order to prevent the 11 Poll. & Mait., Hist. Eng. Law, 
feud, seem to be the basis of this I, 33; II, 156. 


38 HISTORY OF ENGLISH AND AMERICAN LAW 


which we have no record whatever. We may reasonably 
conjecture that much of the customary law of later times 
existed during this earlier period, that it must have varied 
as between different parts of the country, and as between dif¬ 
ferent periods of time. What we know concerning the legal 
remedies of owners of personalty has been outlined in the 
foregoing discussion of theft of cattle. If there was any law 
of contract, it existed in a rudimentary form. In the primitive 
state of society then existing, there was little need of a law 
of contract. Simple barter or sale without the giving of 
credit, title passing only on delivery of possession, involved 
no element of contract arising from a promise. The trans¬ 
action was completed at once without promise of future pay¬ 
ment or delivery. But where a loan was made, or where a 
man became obligated to pay a wergild, or hot, and was per¬ 
mitted to pay in installments, as was frequently the case, there 
was involved at least a future obligation to pay. Performance 
was secured by the giving of a gage, something of value 
handed over to cover the amount of the debt, or a pledge, 
a third person as a hostage or living gage for the performance 
of the obligation. In recovering a loan, the lender simply 
recovered the thing loaned, or its value, as his property; he 
did not enforce a promise to pay. In the case of the gage, 
the giving of it probably discharged the debt, the only remain¬ 
ing obligation being that of the creditor to return it when 
its owner offered to redeem it by paying the amount of the 
original debt. Enforcement of the right to property, not 
the obligation arising out of a promise, was at the root of 
the matter . 12 

Promises when made were in the form of oaths or pledges 
of faith, and were probably enforced through conscience and 
religion rather than by process of law. Apart from statutory 

12 Poll. & Mait., Hist. Eng. Law, 

II, 183, 184. 


ANGLO-SAXON LAW 


39 


provisions regulating the payment of a wergild or hot in install¬ 
ments , 18 and provisions in the Laws of Alfred relating to a 
promise of particular solemnity called god-borh } the subject 
matter of which is not clear , 14 we have no actual authorities 
as to contract in Anglo-Saxon times. Whether promises were 
recognized and enforced under the customary law, and to 
what extent, in the courts of the hundred and the shire, is a 
matter of conjecture . 16 The common law of contract started 
at a much later time. 


§p. Summary of Anglo-Saxon Law. —Just prior to the 
Norman Conquest and the introduction of the feudal system, 
we find, therefore, that there had grown up in England a 
system of land-holding that was feudal in everything but 
name and theory. At the head stood the king, the greatest 
private land-owner, with great estates throughout the king¬ 
dom as his private demesne, who had come finally to be 
regarded as the owner of the public lands, terra regis, with 
all owners of great estates created by book, or charter, holding 
by virtue of his grant confirmed by the ivitan, and conveying 
their land, in form at least, with his consent. If the king’s 
lordship over bookland did not exist in fact, he at least created 
the estates, and the personal relation of king and thegn was 
the basis on which the grants were made. Below the king 
were the churches and king’s thegns, great landed proprietors, 
lords of extensive districts, to whom had been granted lord- 


18 Edm., II, 7. 

14 Alf., 33- 

18 Poll. & Mait., Hist. Bng. Law, 
I, 35, 36. As pointed out by Pol¬ 
lock & Maitland, (I, 36), the Anglo- 
Saxon statutes providing for sales 
of cattle to be made before wit¬ 
nesses had as their sole purpose the 
protection of the buyer in case the 
cattle purchased turned out to be 


stolen. By purchasing before wit¬ 
nesses, he protected himself from 
the charge of theft, though he could 
not keep the cattle as against the 
true owner, as pointed out above. 
These statutes had nothing to do 
with the validity of the sale as such, 
and throw no light on the law of 
contract. 


40 


HISTORY OF ENGLISH AND AMERICAN LAW 


ship and rights of jurisdiction over all occupiers of land withift 
the district granted. These territorial lordships had been 
constantly growing by absorbing the small allodial owners 
through commendation, and through the development of the 
relation of lord and man, so that probably the greater part 
of the country was held in this way. But alongside these 
extensive territorial lordships there still continued to exist 
free communities with their hundred courts, made up of the 
smaller allodial owners whether holding under the customary 
law, or by book, or charter, where rights of jurisdiction had 
not been granted. Within the districts of the territorial lords 
were all classes of tenants: freemen owing rents or dues or 
labor to the lord in return for their land; tenants of laenland 
holding under definite agreements for the mere use of the 
land for life or other term, but without title to anything more 
than the mere usufruct of the land; and serfs or villein tenants 
occupying houses or cottages with smaller parcels of the lord’s 
demesne, bound down to the land and to the service of the 
lord, but free as to all persons other than their lord. Besides 
these, there were the freemen without land employed by the 
lord for hire, and the serf members of his household, without 
land. 

In the hundreds lying outside of these territorial lordships 
there were the freemen with allodial estates existing under 
the customary law, freemen without land employed for hire 
by other freemen, tenants of laenland paying rent to the allodial 
owner, serfs bound down to the land on which they lived and 
to its allodial owner as their lord. Within and without the 
districts of territorial lords, the people lived in village com¬ 
munities for the most part; and the common-field method of 
agriculture was in general use, though ownership of the culti¬ 
vated and meadow land had become several, community prop¬ 
erty being limited to the waste or common, which in the 
territorial lordships had become the land of the lord, subject 
to the rights in common of the dwellers within the district. 


ANGLO-SAXON LAW 


41 


Tenures, therefore, were various and complicated. The 
administration of justice through the courts had become terri¬ 
torial; and every member of the community was made sub¬ 
ject to the law either as a freeholder of land, or as the man 
or serf of a freeholder as lord. So far as the territorial lord- 
ship of churches and king’s thegns extended, the relation 
between king and thegn, and between thegn and the actual 
occupiers of the land within his district, differed very little 
except in mere name from the corresponding relations existing 
under feudalism. It was the work of feudalism to give expres¬ 
sion and coherence to the existing relation, and to bring all 
the various holdings and tenures of the customary law under 
a single all-pervading system, by which society and govern¬ 
ment were organized from serf to king on the basis of land- 
tenure. 

We have seen that we know very little of Anglo-Saxon 
private law. Of details of the law of property, such as dis¬ 
tinctions between real and personal property, emblements, 
waste, details of joint and several ownership, easements, 
profits, future estates, we know nothing. So far as matters 
of this sort had been passed on in the courts, it was matter 
of customary law passed along by word of mouth from one 
generation to another without written record. The law of 
personal property apart from the law applying to the capture 
of the thief and the recovery of stolen cattle was of the same 
nature, and is therefore lost to us. We know almost nothing 
of the Anglo-Saxon law of contract, and what we do know of 
it can hardly be distinguished from property law; that is, the 
right to recover a debt was a right to recover one's property, 
not to enforce a contract. Yet contracts of hiring, contracts 
relating to laenland, and to the many matters arising in every¬ 
day affairs in the simple society of those days undoubtedly 
existed, and were probably subject-matter of the customary 
law of the hundred and shire courts. 

On the other hand, we find many of the important principles 


42 


HISTORY OF ENGLISH AND AMERICAN LAW 


of private law fully developed or in process of development. 
Absolute ownership of land with inheritance in the heirs, 
estates for life, laenland or usufructuary interests, which pos¬ 
sibly were the forerunners of estates for years, alienation of 
land inter vivos, subject to restrictions in favor of heirs, dis¬ 
position of property, real and personal, by will, dower though 
in no clearly defined form, are the more important principles 
of the law of real property dating back to the Anglo-Saxon 
period. Title to personal property, and the right of the owner 
to recover his personal property no matter how often it might 
have been transferred after having been wrongfully taken 
from him, is strikingly recognized in the proceeding growing 
out of pursuit of the thief. Transfer of title by sale and barter 
and disposition of personalty by will were fully recognized. 

The distinction between crimes and torts was established 
in the taking of fines, or writes, by the state for offences against 
the public peace, and the award of a wer or b5t to the kindred 
of a man who had been killed or to a man who had been 
injured by the wrongful act of another. Our records are 
more complete here than elsewhere, owing to the fixing by 
statute of the elaborate tariff for different personal injuries 
heretofore referred to. The law at the close of the Anglo- 
Saxon period was almost entirely a mass of custom passed 
along by word of mouth, without written record, administered 
chiefly by the courts of the hundred and the shire, by men 
with little or no education in the modern sense, very few 
besides the ecclesiastical members in all probability being able 
to read and write, and without professional lawyers or judges. 
But it is this mass of custom, continued during the next hun¬ 
dred years in the manorial and county courts, which finally 
emerged in the common law expressed in written decisions 
by the King’s Court after the reforms of Henry II. 


CHAPTER II 


FEUDAL LAW 

§ 10 . Norman Law and the Feudal System. —At the time 
of the Norman Conquest, the Normans had no written law; 
and we know very little of their customary law. There seems 
to be no doubt that the feudal system which had been develop¬ 
ing throughout France and most of Europe, particularly 
during the two hundred years preceding the Conquest, had 
reached an advanced stage of development in Normandy at 
the time of the Conquest; so that, in theory if not in fact, 
most of the land of the province might be regarded as held 
according to feudal law. The accepted theory is, that the 
germs of feudalism are to be found in the Roman practice of 
rich and powerful owners of land permitting a poor kinsman 
or follower to occupy and take the produce of a parcel of land 
for life, with a probable relation of personal dependence 
between the two. 1 During the early Middle Ages, an estate 
so granted was known as a beneficium, as distinguished from 
an allodium , or absolute estate. The beneficium was not finally 
recognized as an hereditary estate until 8 yy. 2 Beneficia 
included not only estates granted by kings and great men 
to their kin and followers, who owed fealty and service in 
return for protection, but also lands surrendered by their 
weaker allodial owners to churches or great lords to be taken 
back and held from them in return for rent or service, the 
purpose being to secure the protection of the powerful lord. 
The word feudum appears for the first time about the close 
of the ninth century, when the beneficium had become heredi- 

§10. 1 Fustcl de Coulanges, Les * Stubbs, Const. Hist. Eng. (4th 

Origines du systhne ffodal. Digby, ed.), I, 276. 

Hist. Law Real Prop. (5th ed.), 

30 , 3 1 - 



44 


HISTORY OF ENGLISH AND AMERICAN LAW 


tary.* During the tenth and eleventh centuries the feuduni, 
or fee, took the place of the beneficiutn, and the system of 
feudal estates rapidly absorbed allodial estates as well; so 
that all land eventually came under the feudal system of tenure 
and of government based upon tenure. 4 

William, as duke of the Normans, held Normandy as a 
fief from the king of France, subject to fealty and service. 
Feudalism in France had been destructive to the central power 
of the king, as the powerful feudal dukes and counts of the 
great provinces of France had vested in them all the power 
of government, military, economic, and political, and were 
bound only by the largely theoretical tie of fealty and service 
to the king. As duke of the Normans, therefore, William 
was actually supreme lord of the country. 4 The barons, 
counts, and viscounts of Normandy held great heritable fiefs 
of William in return for homage and military service. Juris¬ 
diction, or the right to administer law in the lord’s court, 
undoubtedly existed as a normal incident of every feudal fief. 
But their administration of justice in the local feudal courts 
was not permitted to usurp William’s power as supreme judge.* 

Military service was due from the freeholder to his imme¬ 
diate overlord rather than to the duke or king. This principle 
of feudalism in France, more than any other, served to weaken 
the central power to the advantage of the feudal lord. We 
shall see how William modified this to his advantage in estab¬ 
lishing feudalism in England. 1 

William governed Normandy with the aid of a court made 
up of the great men of the duchy, all of whom were his vassals. 
Judgments of the court were made by them, and grants made 

* See Stubbs, Const. Hist. Eng. 8 See preceding note. 

(4th ed.), I, 273, note i, also Digby, •Poll. & Mait., Hist. Eng. Law, 

Hist. Law Real Prop. (5th ed.), I, 50. 

3i, note. r See §11, post. 

4 Stubbs. Const. Hist. Eng. (4th 
ed.), I, 277, 278. 


FEUDAL LAW 


45 


by the duke were confirmed by them. The feudal courts of 
the barons were made up of suitors, doomsmen, presided over 
by the lord. Legal procedure was probably very similar to 
procedure in the English court. Trial by battle and the sworn 
inquest by jurors existed in Normandy and were undoubtedly 
introduced into England by the Normans, as neither institution 
existed there before the Conquest. 8 In Normandy, the actual 
occupiers of the soil were principally freemen. Slavery or 
serfage had disappeared by the twelfth century; and, in the 
eleventh century, little trace of it can be found. The advent 
of the Normans must have been one of the efficient causes 
which served to end the slave-trade in England. 9 

In criminal law, the Normans seem to have been ahead of 
the English. The system of money payments as compositions 
of crimes had disappeared there, and punishments in the form 
of imprisonment, banishment, and mutilation existed instead. 19 
We know practically nothing of the details of Norman cus¬ 
tomary law in its relation to private rights. Its effect upon 
the customary law of England following the Conquest is, 
therefore, matter of mere conjecture. 

§ 11 . The Norman Conquest and Introduction of Feudalism 
into England .—We have seen that, at the time of the Norman 
Conquest, the English king was the owner of great private 
estates throughout England, and that the public land of the 
kingdom had come to be regarded as belonging to him as 
the supreme lord of the kingdom. By his conquest, William 
made good his pretended claim of title to the English throne, 
and succeeded to all this. As rightful king, he was entitled 
to the land of all who had opposed him, forfeited to him 
under the customary law. The completion of the Conquest 

8 See §21, post. Luchaire, Manuel des institutions . 

9 Poll. & Mait., Hist. Eng. Law, 295. 

I, 53 . 54 ; Delise, op. cit., 17-19; 10 Poll. & Mait., Hist. Eng. Law, 

I, 5 L 52 - 


46 HISTORY OF ENGLISH AND AMERICAN LAW 


and the putting down of rebellion in the years following the 
victory at Hastings, increased these forfeitures, so that the 
greater part of the country became literally the land of the 
king. 

William made extensive grants of this land to his Norman 
followers, being careful to make grants to each in different 
parts of the country so as to scatter the holdings of each lord 
and prevent too great centralization of power in his tenants- 
in-chief. Those of the English who had not forfeited their 
lands and who were willing to accept him as king, surrendered 
their holdings to him, and received them back from him as 
supreme lord. Within twenty years after the Conquest, the 
process was complete. All the land of the kingdom had 
become the king’s land, and was held of the king by the lords, 
or tenants-in-chief, in return for homage and military service. 1 

Probably little change was made in the position of the actual 
occupiers of the land and cultivators of the soil. On the great 
estates of the English thegns, there took place merely a sub¬ 
stitution of lords, the actual possessors of the land continuing 
to enjoy their property in return for dues and services very 
much as before. The transition from the bookland of the 
Anglo-Saxon thegn to the manor of the feudal lord will be 
discussed later. 2 The numerous small allodial estates of the 
English became merged in the great estates of the king’s 
tenants-in-chief. The diverse and confusing tenures which 
existed under Anglo-Saxon law, freehold allodial estates under 
the customary law, bookland, customary interests in the public 
lands, were all amalgamated into a single system. It was a 
movement from confusion of tenures almost impossible to 
express or define in precise terms to a single scheme of real 
simplicity which embraced all the land of the country and 
regulated and determined the rights of all from the simple 

§n. 1 Digby, Hist. Law Real Const. Hist. Eng. (4th ed.), I, 280- 

Pro/). (5th ed.), 34, 35; Stubbs, 284. 

2 See §§12, 14, 19, post. 


FEUDAL LAW 


47 


freeholder in possession of his land to the king, a movement 
which was practically completed during the reign of William. 8 

The nature of the different feudal tenures as they developed 
during the first century of Norman supremacy will be discussed 
hereafter. As a whole, the feudal system was based on the 
doctrine that all the land of the kingdom was in the king; 
that he was the only final, or allodial, owner of land. His 
private demesne lands and all public or waste lands were held 
by him absolutely. All other lands were held, either directly 
from him by his tenants-in-chief, or indirectly through these 
tenants, or mesne lords, by the tenants of the lords. The 
ultimate or allodial title to every acre of the kingdom was 
in the king. The mesne lord held directly from the king. The 
private demesne and the waste of the district granted to the 
lord were held by him as private owner, the waste continuing 
to be subject to the customary rights of the community to 
firewood and pasture. Freemen holding freehold estates from 
the lord held subject to the duty of rendering suit, homage, 
and service to the lord. In France, the feudal lord was supreme 
in his relation with his tenants. All services due from the 
tenants were due to him, not to the duke of Normandy or 
king of France. This, as we have seen, was the chief cause 
of the weakness of the central power in France and the pre¬ 
ponderating strength of the feudal barons. William saw to 
it that his authority should not be handicapped in this way. 
He found, ready for use, the English doctrine of the trinoda 
necessitas, that every owner of land, no matter what his tenure, 
owed to the state and therefore to the king the duty of ren¬ 
dering military service, and of repairing fortifications and 
bridges. The fundamental difference in the feudalism intro¬ 
duced by William into England was, that the military service 
due from the actual freehold owner was due not to the over- 
lord but to the king. In grants of freehold after the Conquest, 

3 Stubbs, Const. Hist. Eng. (4th 
ed.), I, 281, 282. 





48 HISTORY OF ENGLISH AND AMERICAN LAW 


by lords to their tenants, the form of homage between the 
tenant and lord always reserved the allegiance due the king. 4 
Where the lord rendered service to the king in person, he 
could require his tenants holding by military tenure to attend 
with him; but even here their duty and allegiance was to the 
king rather than to the lord in case of any conflict of authority. 

The feudal system, however, was very much more than a 
system of landholding. It was, first of all, a system of govern¬ 
ment and of society which regulated all from the king to the 
poorest freeholder who lived upon and worked his plot of 
land. The king secured his fighting men and revenues, through 
his tenants-in-chief, from the dues and services due under the 
feudal relation. The King’s Court, which with the king was 
the supreme legislative or law-making body as well as the 
supreme law court of the kingdom, was made up of the great 
feudal lords, tenants-in-chief of the king, and their duty of 
suit and service to the King’s Court was one of the incidents 
of their tenure of land from the king. The king as supreme 
lord owed through his armed forces and through his court 
the protection of government and law to all, the general 
enforcement of law and order throughout the kingdom. The 
feudal mesne lord, in return for the dues and services received 
from his tenants, owed to them the protection arising from 
the enforcement of the law. The feudal or local court of 
the manor, presided over by the lord or his steward and made 
up of the freemen of the manor, was the instrument by which 
the law was declared and enforced among the people of the 
manor. The freemen owed to the lord the duty of suit and 
service by attending the lord’s court. Thus the administration 
of law and the maintenance of order locally as well as nation¬ 
ally, and the consequent protection of the individual in the 
enjoyment of his property, were all regulated as part and 

4 Digby, Hist. Law Real Prop. Glanville, Digby, id., 79. ^ 

(5th ed.), 35, 36; also extract from 


FEUDAL LAW 


49 


parcel of this all-pervading system of land tenure. The holding 
of land was the basis of the entire structure of government 
and society, national and local. The private rights of owner¬ 
ship of the individual were blended with the public incidents 
of government and administration of the law.® 

Looking at the matter from the standpoint of private owner¬ 
ship of property in the modern sense, the freeholder in posses¬ 
sion was the owner of his land, with the sole right of possession 
and dominion. His lord had no rights of possession or 
dominion. He was entitled only to the dues and services 
growing out of the tenure by which the tenant held. If he 
entered upon the tenant without right, he was as much a tres¬ 
passer as any stranger. Nevertheless, he had something more 
than ownership of dues and services as incorporeal rights. 
He was seised, that is, possessed, of the property in suit and 
service. If the ownership of the tenant became extinguished 
through his death without heirs, he not having disposed of 
the property, the lord acquired the ownership by escheat. If 
the tenant lost his property by forfeiture because of failure 
to perform his feudal obligations, the lord acquired full owner¬ 
ship in the modern sense.® The relation of these matters to 
the private law of property as distinguished from the public 
law will be discussed hereafter . 7 

§12. Military Tenure or Knight's Service .—Before the 
Norman Conquest, the duty of rendering military service 
rested upon every freeman. The Saxon host, made up of 
hundreds of warriors drawn from corresponding divisions of 
the tribe, together with the chief men, each with his followers 
or comitatus, has already been referred to . 1 No doubt much 
the same arrangement was continued in England after the 

8 Stubbs, Const. Hist. Eng. (4th T See §12, post. 
ed.), I, 273, et seq. §12. 1 See ch. I, ante. 

6 Poll. & Mait., Hist. Eng. Law. 

n, 3-6. 


50 


HISTORY OF ENGLISH AND AMERICAN LAW 


migration. From the time of Alfred onward, the more thor¬ 
ough military organization established by Alfred was attended 
with a duty of military service that bore a definite relation 
to the ownership of land. The ordinary freeman owed military 
service to the state and therefore to the king, and discharged 
this duty by service in the fyrd, the national armed force, 
the fyrd of each county being under the military leadership 
of the Ealdorman. 2 The thegn owed military service depend¬ 
ing in amount on the number of hides of land held by him. 
The common measure of service seems to have been one 
mounted warrior with equipment for every five hides (about 
600 acres) of land. The land did not owe this service; it was 
due from the thegn or ordinary freeholder to the king as lord 
of the nation; but it was regulated and determined on the 
basis of land ownership. 3 One reason given by Stubbs for 
the development of lordships at the expense of the smaller 
freehold estates was that the small freeholder could get rid 
of the burden of military service by surrendering his land 
to another as lord, who would thus assume the duty of military 
service based on the ownership of the land in question, the 
former owner taking it back and paying a rent or other return 
to the lord. 4 

Nearly all of William’s tenants-in-chief held by military 
service. The lands of the churches were not forfeited, but 
after the Conquest came to be held from the king by frankal¬ 
moign tenure, 5 and some tenants-in-chief held by serjeanty or 
by socage tenure, but, for the most part, those holding directly 
from the king held by knight-service.* There is no doubt 
that William fixed the exact amount of military service that 
each of his tenants-in-chief should render, and this bears a 
rough relation to the existing service which had been due 

2 Stubbs, Const. Hist. Eng. (4th 5 See §13, post. 

ed.), I, 209, 210. * Poll. & Mait., Hist. Eng. Law, 

3 Id., 211, 212. 1, 232. 

*Id., 212. 


FEUDAL LAW 


51 


from the thegns before the Conquest. The unit for determin¬ 
ing the amount of service was the knight’s fee, in the usual 
case five hides (about 600 acres) of land from which the 
service of one knight was required. But there was no fixed 
rule to this effect either before or after the Conquest. William, 
in fact, seems to have imposed his will in the matter, and 
imposed service on a different basis in many cases. Possibly 
the difference was based on the difference in value between 
the different tracts of land, the amount of service, that is, the 
number of knights, to be supplied by a given district granted 
to a tenant-in-chief being roughly proportioned to the value 
of the land granted. 7 

A great many of the king’s tenants-in-chief held only a 
single knight’s fee, or two or three knight’s fees; but the great 
lords and barons had many knight’s fees; a few had as many 
as fifty or more. The term “barony” came to be applied to 
these greater holdings, the term “honour” being used for 
the very greatest, though every honour was also a barony. 
As already pointed out, William scattered the holdings of any 
one lord, so the usual barony or honour was made up of sep¬ 
arate parcels distributed about in different parts of the 
country.® 

The duty of the tenant-in-chief, or mesne lord, to the king 
was to furnish the number of knights corresponding to the 
number of knight’s fees held by him. It is usually stated 
that the period of service due from each knight was forty days. 
As Pollock and Maitland point out, the forty-day limit did 
not exist in practice, and its prevalence as a recognized rule 
in theory is not established by the evidence available. There 
seems to be no doubt that the king could and generally did 
demand longer service when the needs of the war required 
it, as was usually the case, only he paid the knights wages 

7 Poll. & Mait., Hist. Eng. Law, 8 Poll. & Mait., Hist. Eng. Law , 
I, 235, 236; Stubbs, Const. Hist. I, 238; See Round’s articles, Eng. 
Eng. (4th ed.), I, 287, 288. Hist. Rev., VI, VII. 


52 


HISTORY OF ENGLISH AND AMERICAN LAW 


after the first forty days; during the forty days, they served 
without payment from the king.® 

Every acre of the land held by the lord from the king was 
bound for the service of the entire number of knights with 
which the land of the lord was bound. As between king and 
tenant-in-chief there was no division of his land into separate 
knight’s fees. To illustrate, if the land of the lord was charged 
with ten knight’s fees, each and every part of it was charged 
with the entire ten knight’s fees. The land as well as the lord 
was bound, and no disposition of the property by the lord to 
others could in any way affect the rights of the king to enforce 
against the land the military service which it owed. If the 
lord should grant portions of the land to ten knights, each 
holding from him a knight’s fee, and other portions to tenants 
holding from him by frankalmoign or socage tenure, free of 
military service, which was to be borne by the ten military 
tenants, this arrangement would be binding as between the 
mesne lord and his tenants and as between the tenants them¬ 
selves, but all the land continued to be bound to the king for 
the entire ten knight’s service, the land of those holding from 
the mesne lord free of military service as well as the land of 
the ten knights holding by military service. Of course, the 
king was satisfied if the ten knights did their duty. So long 
as he received the service of ten knights from the mesne lord, 
he could not complain that the service was rendered by the 
holders of part of the land to the exclusion of the remainder 
of the lord’s manor or barony. On the other hand, if he did 
not receive the stipulated service, he could proceed against 
all the land, that of the tenants holding from the lord by tenure 
free of military service as well as that of the ten knights. In 
practice, an exception was made in cases of churches holding 
from the lord by frankalmoign. It was held that, in such 

• Poll. & Mait., Hist. Eng. Lour, 

I, 233, 234. 


FEUDAL LAW 


53 


case, the service should be enforced by the king in the first 
instance against the lands of the lord not so granted to 
churches, carrying out the pious purpose of the grants to the 
churches where the king’s rights could be enforced against 
the remaining land . 10 

What was the nature of the service due from the tenant 
holding a knight’s fee from the mesne lord? He held only 
from the lord, and therefore his personal feudal obligation 
was to his lord alone. But his land was bound, as we have 
just seen, for all the military service due from his lord to 
the king. Furthermore, the service which he owed was mili¬ 
tary service in behalf of the king, in wars of the nation, not 
in the private quarrels of lords. The form of homage to his 
lord expressly reserved his duty of allegiance to the king. 
Though the tie theoretically was between tenant and lord, 
the actual service when rendered was rendered to the king . 11 

As stated above, the tenants of the lord might hold so that 
the entire military service due from the lord, and therefore 
from their land, should fall on some of them, the others having 
the right to insist that the service be rendered by those who 
had undertaken that duty in return for the land granted to 
them. As between several tenants each holding a fractional 
part of a single knight’s fee, one of them might render the 
service on being paid by the others. Any sort of arrangement 
made between the tenants of the land bound to the service, 
as a result of which the king received the service of the 
required number of knights, was good as between the tenants 
and would be enforced by the courts. The king, however, 
always had the right to enforce the service, if he did not 
receive it, against the land of all of them . 12 

10 Madox, Exchequer, I, 670-671; Rufus, I, 574; Digby, Hist. Law 

Poll. & Mait., Hist. Eng. Law, I, Real Prop. (5th ed.), 35, 36. 
239-241. 12 Round, Ancient Charters, 19 ; 

11 Id., 242; Freeman, JVillliam Bracton’s Note Book, pi. 1182; Poll. 

& Mait., Hist. Eng. Law, I, 239-241. 


54 


HISTORY OF ENGLISH AND AMERICAN LAW 


Feudalism in anything like a pure form of military tenure 
existed in England for only about a hundred years, including 
the years in which its introduction was accomplished, or 
roughly from 1066 to 1166. During this period the armies 
of the king were secured by the actual service of feudal tenants. 
But, before this first hundred years of feudalism had expired, 
the king was receiving a money payment called scutage, or 
escuage, as a substitute or composition for military service. 
The sort of limited service secured by military tenure did 
not result in securing the permanent military establishment 
which the king needed. Besides it was becoming more difficult 
all the time for the churches, barons, and other tenants-in- 
chief to secure knights to render their services for them. The 
payment to the king of a sum of money instead, by the use 
of which he could hire and maintain a permanent army, was 
more satisfactory to king and lord, and infinitely so to the 
simple freeholder who was tending to become more and more 
an ordinary farmer or country squire rather than a soldier 
and knight. Besides, as time went on, knight’s fees were 
becoming more and more frequently divided into fractional 
parts, each part held by a different person, a situation not 
conducive to the actual rendering of military service by any 
of them, which could be only through their joining in hiring 
one of their number or a stranger to serve for them. The 
division among them of a money payment, scutage, in a fixed 
amount for each knight’s fee, was the simplest solution of 
the problem. 13 During the next hundred years, roughly from 
1166 to 1266, scutage had almost entirely taken the place 
of actual military service, and military tenures were military 
in name only, not in fact. 

It is well established that the tenant-in-chief had no option 
between paying scutage and rendering military service. If 

13 Poll. & Mait., Hist. Eng. Law. I, 231, 246; Round, Eng. Hist. Rev., 

VI, 629, 631. 


FEUDAL LAW 


55 


he failed to appear with the number of knights with which 
he was charged, he was fined for his default. In other words, 
his scutage was fixed after the campaign was over and the 
default had been made. The amount of scutage charged 
against the tenants in demesne holding from lords was two 
pounds per knight’s fee, but the tenant-in-chief was fined 
much more than this, in cases of which we have a record two 
or three times this sum per knight’s fee held by them. 14 These 
fines seem to have increased with the growing cost of paying 
and equipping a knight, and the king probably collected by 
way of fine from his tenants-in-chief what it cost him to hire 
and maintain the knights they were required to furnish. 

With the tenants holding from the tenants-in-chief, the 
matter was very different. Whatever the earlier theory may 
have been, it became established as a practical matter that 
the ordinary freeholder could pay scutage at the regular rate 
of two pounds per knight’s fee, paying a fractional part cor¬ 
responding to his interest if he had only part of a fee, instead 
of rendering service, and without incurring default. The 
overlord might, on making special application, secure a royal 
writ for the collection of this scutage from his military tenants, 
thus getting back some part of the amount which he had been 
forced to pay the king. However, in practice, the king seems 
to have assumed the right to collect this scutage himself 
directly from the tenants of the lord. In this light, it would 
seem to have something of the nature of a national tax for 
military purposes. The scutage due from the lord’s tenants 
was therefore the king’s, except as he in effect granted it to 
the lords by permitting them to collect it by royal writ. 15 

After this second century of feudalism, characterized by 
payment of scutage in place of actual military service, the 
payment of scutage became of little relative importance and 

14 See instance given by Pollock 16 Poll. & Mait., Hist. Eng. Law, 

& Maitland, Hist. Eng. Law, I, 247; I, 250-253. 

Madox, Exchequer, I, 660. 


56 HISTORY OF ENGLISH AND AMERICAN LAW 

finally disappeared altogether, military tenure being continued 
as distinguished from socage tenure, in order to save the lord’s 
rights of wardship and marriage which had become the most 
profitable incidents of military tenure. It had, of course, long 
since ceased to be military in fact. Military tenure existed, 
and rights of wardship and marriage could be enforced, in 
every case where scutage could or might be collected. The 
only question that arose between lord and tenant with refer¬ 
ence to tenures by military service thereafter was this question 
of wardship and marriage. As these rights were exceedingly 
profitable to the lords, they were jealously guarded and main¬ 
tained through the continued existence of military tenure in 
theory after every trace of its military character had dis¬ 
appeared. This was the situation from about 1300, or earlier, 
down to 1535, when the statute of uses was enacted, or from 
the reign of Edward I to that of Henry VIII. The burdens 
arising from the rights of wardship and marriage bore less 
heavily during a considerable part of this period because of 
the general employment of uses and their enforcement by 
the chancellor’s court; but the enactment of the statute of uses 
removed this relief. By this time, a very large part of the 
country was held directly of the king, and tenants were there¬ 
fore more anxious to avoid these burdens than to preserve 
them as rights which they might have as mesne lords. Black- 
stone describes the hard lot of the tenant-in-chief by military 
service as follows: “The heir, on the death of the ancestor, 
if of full age, was plundered of the first emoluments arising 
from his inheritance, by way of relief and primer seisin; and, 
if under age, of the whole of his estate during infancy. And 
then, as Sir Thomas Smith very feelingly complains, ‘when 
he came to his own after he was out of wardship, his woods 
decayed, houses fallen down, stock wasted and gone, lands 
let forth and plowed to be barren,’ to reduce him still further 
he was yet to pay half a year’s profits as a fine for suing out 
livery; and also the price or value of his marriage.” 


FEUDAL LAW 


57 


An attempt was made to do away with these burdens during 
the reign of James I, but it failed. It was not until the reign 
of Charles II that military tenure was finally ended and con¬ 
verted into socage tenure. 18 


§13. Frankalmoign and Serjeanty.—Frankalmoign tenure 
was the holding of land by churches or religious houses “in 
free alms,” free from secular service of any kind, subject only 
to service of a spiritual nature, such as the saying of prayers 
for the soul of the grantor. 1 The ecclesiastical courts had 
claimed and exercised exclusive jurisdiction over the enforce¬ 
ment of frankalmoign rights. During the reign of Henry II 
(1164), a procedure known as the assize utrum was estab¬ 
lished, in which the question whether the land in dispute was 
“lay fee or alms” was decided by an inquest of twelve men 
on a writ issued to the sheriff. This was done in order to 
determine whether the case should be decided by the lay courts 
or by the ecclesiastical. 2 Churches, abbeys, and monasteries 
holding in this way sometimes held direct from the king, but 
more frequently they held from tenants-in-chief of the king 
by grants made in free alms. In this latter case, the land 
continued subject to the burden of military or other service 
due the king. Here as in other cases, the performance of 
this service could be arranged between the lord and the tenant 
as they pleased. If nothing was said about it, the understand¬ 
ing apparently was that the service should be performed by 
the lord, relieving the church or ecclesiastical body. 8 

Serjeanty tenure depended on service rendered by the tenant 
as a servant of his lord in return for his land. Grand ser¬ 
jeanty, as it was called in the later feudal period, was a 


1# 12 Chas. II, ch. 14; Digby, Hist. 
Law Real Prop. (5th ed.), 393-396. 

§13. 1 Poll. & Mait., Hist. Eng. 
Law, I, 218, et seq.; Litt., §§133-8. 


2 Poll. & Mait., Hist. Eng. Law, 
I, 123, 124; Const. Clarendon, ch. 9. 

* Bracton, f. 12, 27b, 286b; Cart. 
Glouc., II, 17, 30, 98; Poll. & Mait., 
Hist. Eng. Law, I, 223, 224. 


58 HISTORY OF ENGLISH AND AMERICAN LAW 

holding directly from the king by a member of his household, 
as his steward, marshal, constable, chamberlain, his carver, 
butler, and the like, their holding depending on the services 
rendered. Other instances were tenures of land based on 
keeping the king’s hounds or hawks, supplying him with 
arrows, and the like. Others held subject to the duty of 
supplying the king with a serjeant to serve as a soldier in 
the king’s army, or as an officer of the national .force of 
common soldiers, the militia of the country. Serjeants holding 
from mesne lords were of the same general character except 
that they did not hold from the king. When they held from 
a mesne lord under the duty of supplying one or more men 
for military service, the service was to be performed for the 
king, though the holding was from the lord to whom the 
service was technically due. 4 

§14. Socage Tenure. —Every free tenure which was not 
one of the three kinds described in the last two sections was 
socage tenure. The socage tenant was not bound by tenure 
to render military service, and therefore he was not required 
to pay scutage. The oppressive burdens of wardship and mar¬ 
riage, which were the chief incidents of the later period of 
military tenure, did not touch him. He held subject to a 
fixed service, either the payment of rent, nominal or substan¬ 
tial, in money or crops, or the rendering of fixed and definite 
agricultural services on his lord’s demesne lands. He owed 
homage and fealty to his lord, as well as suit to the manorial 
court, and was subject to the payment of aids and reliefs, 
hereafter discussed. 1 

Socage tenure grew up from the holding of the sochemanni, 
socmanni, or liberi socmanni of the Anglo-Saxon period. The 

4 Litt., §153; Stubbs, Const. Hist. jeanty tenure see Poll. & Mait., 
Eng., I, 383; Madox, Exchequer, II, Hist. Eng. Law, I, 262-271. 

295. For a full treatment of ser- §14. 1 Poll. & Mait., Hist. Eng. 

Law, I, 271-273. 


FEUDAL LAW 


59 


small land owners holding absolute allodial estates under the 
customary law had come under the jurisdiction of the thegns 
or great lords in the development of the relation of lord and 
man, as we have seen. They became the free suitors or mem¬ 
bers of the lord’s court, holding by suit or service, the term 
“socage” being derived from the Anglo-Saxon soca > socu, 
meaning “jurisdiction.” They were generally bound to render 
some fixed rent or service in return for the land. 2 The develop-, 
ment of socage tenure after the Conquest, so that it included 
every form of holding not military, spiritual, or serviential, 
was a natural development, the inclusion in a single class of 
many varieties of holding of the same general character and 
with the same characteristics, differing only in non-essential 
details. Some socage tenants held free from rent, subject 
only to homage and fealty and the service of attending the 
lord’s court. Others held subject to a rent more or less nom¬ 
inal. Still others held subject to a rent which represented 
something like the full rental value of the land in the modern 
sense. Some owed personal service on the lord’s demesne, 
so that their social condition could have been little above that 
of the serf. They, however, were free to surrender their land 
and get rid of the service, which the serf could not do. As 
a class, socage tenants occupied a lower social scale than 
knights. Their relation to the lord was more nearly a business 
relation without the pomp and circumstance incident to the 
position of the knight. 3 But when the knight became a mere 
dispenser of scutage instead of a mailed warrior, a farmer 
or country squire instead of a doer of deeds of gallantry and 
valor, this difference as a practical matter must have gradually 
disappeared. The burdens arising from the lord’s rights of 
wardship and marriage made military tenure unpopular. Men 
were desirous of holding, whenever possible, as socage tenants, 
after the early days of genuine feudalism had passed. The 

2 Digby, Hist. Law Real Prop. 8 Poll. & Mait., Hist. Eng. Law, 
(5th ed.), 45 and note, 47. I, 271, 272, 275. 


6o 


HISTORY OF ENGLISH AND AMERICAN LAW 


final conversion of military tenures into tenure by free and 
common socage above referred to 4 was regarded as a deliver¬ 
ance of military tenants from a condition of real oppression. 5 


§15. Reliefs, Aids, Wardship, Marriage. — During the 
entire feudal period in England, there is no doubt that freehold 
estates in fee were estates of inheritance, passing to the heir 
or heirs by law on the death of the tenant. But this right of 
inheritance was coupled with the duty of paying a sum of 
money, called a relief, to the lord. This duty was an incident 
of both military and socage tenure. In Glanville’s time, the 
relief for a knight’s fee was one hundred shillings. Magna 
Carta fixed the relief of a knight’s fee at one hundred shillings, 
of a barony at one hundred pounds. The heir of a socage 
tenant paid an additional year’s rent. 1 In the case of the heir 
of a tenant-in-chief, the king was entitled to take possession 
and hold the lands until the question of who was heir had 
been determined by inquest, and the heir was not permitted 
to take possession until payment of his relief to the king had 
been provided for. This right of the king was called primer 
seisin. 2 

Aids grew out of the vaguely defined general duty owed by 
the man to his lord to come to his aid in case of need, not only 
in person but with money. Gradually the cases when money 
could be demanded as a matter of right came to be restricted 
to an aid for ransoming the lord when taken captive, for the 
knighting of the lord’s eldest son, and for one marriage of 
the eldest daughter. The Charter of 1215 so provided; and, 
though this provision was left out of the later charters, it 


4 See §13, ante. 

5 Blackstone, Comm., II, 76; Dig- 
by, Hist. Law Real Prop. (5th ed.), 
393 . 394 - 

§15. 1 Glanv., lib. IX, Cap. 4; 
Bracton, f. 84b, 85b, 86; Poll. & 
Mait., Hist. Eng. Law, I, 288-290; 


Digby, Hist. Law Real Prop. (5th 
ed.), 40. 

*Stat. Marlborough, ch. 16; Prae- 
rogatavis Regis, Statutes of the 
Realm, I, 226; Poll. & Mait., Hist. 
Eng. Law (5th ed.), I. 282. 


FEUDAL LAW 


6l 


seems to have become established law at about that time. 8 
In 1275, a statute was enacted which fixed the aid for knight¬ 
ing the eldest son and marrying the eldest daughter at twenty 
shillings per knight’s fee, and twenty shillings for twenty 
librates of land held in socage, making the payment of aids 
a clearly defined legal duty, rather than a matter of grace, 
as Bracton seems to have regarded it. 3 4 * * 

The lord’s rights of wardship and marriage attached only 
to tenure by military service. On the death of the tenant 
leaving an heir under twenty-one, the lord became the guardian 
of his person and property, receiving the entire income with¬ 
out duty to account, except that, out of this income, he should 
pay for the education and support of the heir, and the debts 
of the deceased tenant. He was also bound not to commit 
waste, subject to the penalty of forfeiture of the wardship. 8 
Through his guardianship of the heir’s person arose his right 
to control his marriage. No doubt the lord’s consent to the 
marriage of female heirs, or of daughters of a living tenant 
who might become his heirs, was originally based on the feudal 
ground that a tenant through marriage should not be admitted 
who might be an enemy of the lord. By Glanville’s time, the 
right of the lord to control the marriage of female heirs was 
fully established. 8 Toward the latter part of the twelfth 
century, the right to control the marriage of male heirs was 
asserted and practised. 7 There can be no doubt that this exten¬ 
sion of the doctrine was not required to maintain or protect 


3 Poll. & Mait., Hist. Eng. Law, 
I, 330, 331. See instances given by 
Poll. & Mait. (p. 331), where aids 
for other purposes were taken, as 
to enable the prior to pay his debts; 
to enable the abbot to pay a fine to 
the king; to enable the earl to stock 
his land. 

4 Bracton, f. 36b; Stat. Westm., 

I (3 Edw. I), ch. 36; Poll. & Mait., 

Hist. Eng. Law, I, 331, 33 2 - 


• Glanv., lib. VII, cap. 9; Brac¬ 
ton, f. 89; Poll. & Mait., Hist. Eng. 
Law, I, 299-300. 

• See extract from Glanville, Dig- 
by, Hist. Law Real Prop. (5th ed.), 
88 . 

T Digby, id., 42, note 4; Poll. & 
Mait., Hist. Eng. Law, I, 305, 306; 
Madox. Exchequer, I, 323-325. 


62 


HISTORY OF ENGLISH AND AMERICAN LAW 


the feudal relation; it was simply an arbitrary method of 
getting money practised by the lords, which quickly became 
established as a property right. Like other property rights, 
it followed logically that this right to dispose of the heir’s 
marriage could be sold for money, as could the rights of the 
lord as guardian of the person and property of the ward. 
These rights were so far regarded as the personal property 
of the lord that they could be bequeathed by will, and they 
passed to his executors on his death. 8 This does not mean 
that the lord could actually compel an alliance to which the 
ward objected. The obnoxious marriage could be avoided 
by the ward’s refusal; but the lord was entitled in that case 
to payment from the ward’s estate of a sum equal to what he 
was to receive for the marriage. A marriage contracted with¬ 
out the lord’s consent or against his wishes was not void; 
but it was a wrong to the lord, who was entitled to compensa¬ 
tion for the damage done him. 9 


8 Bracton, f. 89; Poll. & Mait., 
Hist. Eng. Law, I, 303. 

9 The rights of the lord and his 
remedies in case of a marriage re¬ 
jected by the ward, or contracted 
by a ward or expectant heir with¬ 
out his consent, took their final 
form in the Statute of Merton, ch. 
6, 7. “Of heirs that be led away, 
and withholden, or married by their 
parents, or by other, ... he shall 
yield to the loser the value of the 
marriage,” if the heir be under 
fourteen years of age. If the heir 
be fourteen or over up to twenty- 
one, “if he marry without license 
of his lord to defraud him of the 
marriage, and his lord offer him 
reasonable and convenient marriage, 
without disparagement, then his 
lord shall hold his land beyond the 
term of his age (viz. twenty-one 


years) so long that he may receive 
the double value of the marriage, 
after the estimation of lawful men, 
or after as it hath been offered him 
for the said marriage before. . . .” 
Then follows a provision that if the 
lord marries his wards to villeins 
or others beneath their station, 
“where they be disparaged,” if the 
heir be under fourteen and his 
friends complain, the lord shall for¬ 
feit the wardship thenceforth, but 
not if the ward be fourteen or over 
and consent to the marriage. 

Ch. 7: “If an heir, of what age 
soever he be, will not marry at the 
request of his lord, he shall not be 
compelled thereunto; but when he 
cometh to full age, he shall give to 
his lord and pay him as much as 
any would have given him for the 
marriage, before the receipt of his 


FEUDAL LAW 


63 


It must be noted that the right of marriage included the 
right to dispose of and control marriages of presumptive heirs 
as well as of wards. Marriages of female tenants who were 
of full age were also subject to “the advise and disposal of their 
lord.” 10 

Rights of wardship over the heirs of socage tenants were 
in the nearest relatives who could not inherit the ward’s prop¬ 
erty. 11 During the time of Glanville (1160-1180) and of Brac- 
ton (1250), these rights of wardship could be sold and the 
ward in socage could be disposed of in marriage by his 
guardian exactly as in the case of military tenures. This was 
changed by the provisions of Westminster (1259, ch. 3), con¬ 
firmed by the Statute of Marlborough (1267, ch. 17), which 
provided that the guardian in socage had to account to the 
ward on the expiration of the guardianship, and could not 
dispose of the ward in marriage except to the ward’s profit. 12 


§16. Villein or Customary Tenure .—We shall find, when 
we take up for consideration the make-up and characteristics 
of the typical English village and manor in the next chapter, 
that by far the most numerous class residing on the manor 
and subject to the lord and his court were the unfree, the 


land, and that whether he will mar¬ 
ry himself, or not; for the mar¬ 
riage of him that is within age of 
mere right pertaineth to the lord 
of the fee.” See Digby, Hist. Law 
Real Prop. (5th ed.), 126, 127. 

10 See Glanv., lib. VII, cap. 12. 
“If, however, they (female heirs) 
are of full age, in that case too they 
will remain in the wardship of their 
lord until they are married by the 
advice and disposal of their lord.” 
Digby, id., 91. 

11 “The heirs of socage tenants 
shall on the death of their ancestor 
be under the guardianship of their 


nearest relations, provided, how¬ 
ever, that if the inheritance has 
descended from the father’s side, 
the waidship belongs, to relations 
on the mother’s side, but if the in¬ 
heritance has descended from the 
mother’s side, then it belongs to 
relations of the father. For the 
wardship is never by law placed 
in the hands of any one of whom 
any suspicion can be entertained 
that he may or will claim any right 
to the inheritance.” Glanv., lib. 
VII, cap. 2. Digby, id., 90. 

12 Poll. & Mait., Hist. Eng. Law, 
I, 303- 


64 HISTORY OF ENGLISH AND AMERICAN LAW 


villeins or serfs, bound down to the land of their lord. These 
men made up the village communities of the different manors. 
They were not freemen. They could not do as they pleased 
or live where they pleased, like freemen, but were bound to 
remain on their lord’s lands and perform the duties which 
attached to their holdings of land. A freeman holding by 
villein tenure could surrender the land and so escape the service 
which went with it, but a villein could not do this. His tenure 
did not in any way involve the feudal relation. He had no 
private estate in the land, such as a freeholder had, which 
the law would protect. If ousted by the lord, he was without 
remedy; his lord could oust him at his pleasure. His land 
and all his personal property belonged to his lord. 1 His lord 
had no right to kill or seriously injure him; to that extent 
the criminal law protected him; but he could be beaten or 
imprisoned by the lord with impunity, though this was prob¬ 
ably seldom done.* 

On the other hand, in his relations with every person other 
than his lord, the villein had all the rights and remedies of 
a freeman. No others could assault him, or take his personal 
property. If ousted of his real property by a third person, 
he could not maintain an action to recover it because he did 
not have an estate in the land which the King’s Court recog¬ 
nized; the injury in that case was done the lord, who alone 
could sue to recover the land, and thus regain its possession 
for his villein tenant. 8 Though without rights in the King’s 
Court against the lord except in the protection of life and 
limb, he held his land with rights and subject to duties which 
were definitely, even minutely, fixed by the customs of the 
manor, declared and enforced by the manorial court. The 
general nature of the terms of this tenure may be briefly 

§16. 1 Bracton, f. 6, §3; f. 155b, Poll. & Mait., Hist. Eng. Law. 
§3; L Ml- See Poll. & Mait., Hist. I, 402; Hengham, Parva, ch. 8; 
Eng. Law, I, 398, 399 - Bracton, f. 155, §2. 155b, §3, f. 204, 

2 Id. Bracton, f. 141. 204b. 


FEUDAL LAW 


65 


sketched, it being understood that we are describing the usual 
and generally prevailing relation between villein and lord, 
and that many modifications and exceptions undoubtedly 
existed. 

The villein tenant occupied his village house or cottage 
with its enclosure, and held in addition strips of arable land 
in the great arable fields of the manor, these strips being inter¬ 
mingled with other strips held by freemen, including military 
and socage tenants, and by the lord as part of his private 
demesne. He might also have a piece of meadow land, and 
in most cases he had the right to pasture his cattle in the 
common. He made his living by working his land, if a holder 
of cultivated land, or by working for wages for others while 
not employed on his lord’s demesne, if he was a mere cottager 
without a part of the cultivated fields. The usual holding by 
a villein tenant was called a virgate or yardland, and in most 
cases consisted of about thirty acres, though in many cases 
they were larger or smaller than this, variations in size prob¬ 
ably tending to balance inequalities in value. In return for 
his land, the tenant owed a duty definitely fixed by custom to 
work on the private land or demesne of his lord, subject to 
his lord’s orders, two or three days of each week during the 
greater part of the year, and four or five days per week during 
the busy summer season. Custom fixed in a surprisingly 
minute way many of the details—what would constitute a 
day’s work in hauling in corn, plowing, gathering nettles, etc., 
—when the lord would be required to furnish the tenant with 
his dinner, etc. The tenant was frequently bound to furnish 
his lord with poultry at Christmas and with eggs at Easter, 
and to make certain payments, sheriffs’ aid, hundred penny 
and ward penny. 

These may be regarded as typical services and payments 
by a virgater, the usual tenant. One holding only half a 
inrgate rendered half of these services. A cottager without 


66 HISTORY OF ENGLISH AND AMERICAN LAW 


arable land usually had to work only one day per week, and 
a second day during the busy season. 4 

In addition, villeins were often required to pay merchet, 
a payment to the lord for his consent to the marriage of the 
tenant’s daughter; and frequently they were subject to be 
tallaged, or taxed, by the lord, sometimes once a year, some¬ 
times twice in seven years. The amount of these exactions 
was indefinite and undetermined. These imposts, and the 
rendering of services of an indefinite nature, indefinite because 
dependent upon the order of the lord from day to day, are 
the marks by which we may distinguish villein from freehold 
tenure. 5 

Under the law, the villein tenant held at the will and pleas¬ 
ure of the lord; but, while his holding continued, it was sub¬ 
ject and according to the customs of the manor. To what 
extent these customs might be enforced against the lord is 
really another form of asking whether the manorial court 
restrained the lord from arbitrarily ousting the tenant. That 
he could oust the tenant for failure to render the customary 
dues and services, is clear, though it appears that this was 
not frequently done. Their services were too valuable to be 
lost, and lords were too anxious to have their land occupied 
on these terms. They were punished for infractions rather 
by being compelled to pay small fines to the lord. In some 
of the cases of which we have a record of tenants’ being ousted 
from a tract of land in order to turn it over to a priory or 
other religious house, compensation was made to the tenants 
by giving them their freedom, or other holdings elsewhere.® 
It is clear that the lord’s power to oust the tenant, though 
seldom exercised, was restrained by moral considerations, the 

4 See description of services owed I, 393; and see the pages following; 
by certain tenants in the Abbott of Cart. Rams., I, 310, 315. 

Ramsey’s manor. Poll. & Mait., * Poll. & Mait., Hist. Eng. Law, 
Hist. Eng. Law, I, 349; Cart. Rams., I, 350, 351, 354, 355. 

9 Id., 360. 


FEUDAL LAW 


67 


conscience of the lord, rather than by anything in the nature 
of positive customary law. Customs bound the tenants, but 
were mere expressions of the will of the lord, subject to revo¬ 
cation or modification as his conscience and the morality of 
the period permitted. 7 

Villein holdings were inheritable in varying ways in differ¬ 
ent localities and during different periods, on payment of a 
sum of money to the lord; and they could be transferred from 
one tenant to another on payment of a fine by a surrender 
to the lord and regrant from him to the purchaser, though 
there is little record of such transfers. In theory of law, the 
property was the lord’s throughout; and he determined its 
inheritance and transfer subject to the moral force of the 
customs of the manor, which generally prevailed. 8 9 

Prior to the latter half of the fifteenth century, or for four 
hundred years after the conquest, nearly two hundred years 
beyond the feudal period we have been considering, these 
customary rights continued to be administered by the manorial 
courts alone without the active recognition or protection of 
the law of the land. But the positive movement of custom 
to law was going on all the time; the customs were becoming 
more and more definitely established; and, though the earlier 
attempts to get the king’s courts to recognize them failed, they 
were gradually adopted into the law by a series of decisions, 
emerging finally in the form of copyhold tenure.® The rights 
of the copyhold tenant depended upon the customs of the 
manor as expressed in the rolls or records of the manorial 
court. The authorized copy of the entry on the court rolls 
delivered to the tenant was his evidence of title; hence the 
name “copyholder.” The rendering of servile work gradually 
gave way to the payment of dues; the rights of the lord over 
the person and personal property of the tenant have long since 


7 Id., 359-362. 

8 Id., 362, 365. 

9 Trespass against the lord was 


allowed in a case reported in Year 
Book, 7 Edward IV, 19. 


68 HISTORY OF ENGLISH AND AMERICAN LAW 

disappeared. Copyholders in England today hold according 
to the customs of the manor in which their land is situated; 
and, as these customs as to payment of dues, inheritance, 
transfer, etc., varied in the different manors, so also do the 
incidents of tenure under which the tenants of the different 
manors hold their lands today. 10 Copyhold tenure has, for 
obvious reasons, never existed in the United States. 

§17. Administration of Law.—The King’s Court. —Pri¬ 
vate law as administered in England during the period of 
pure feudalism, roughly the first hundred years following the 
Conquest, or up to the reign of Henry II, was very largely 
the customary law of the local courts, the courts of the county, 
or shire, of the hundred and of the manor. We know very 
little by direct evidence of this customary law. There are 
no reliable written records of it. We know something of 
the courts which administered it, and of their procedure, and 
in this way we get a fair notion of the character of the law 
which governed the private affairs of the average person. We 
know that these courts were composed of suitors, freemen 
who for the most part could not read or write, whose knowl¬ 
edge of law was that passed down to them by their predecessors 
by word of mouth, or their knowledge of custom acquired by 
practical experience. This customary law must have varied 
greatly from generation to generation and in the same period 
as between different localities. Glanville, our first English 
legal author, toward the end of Henry IPs reign, speaks of 
these customs as varying so greatly that he declined to attempt 
any statement of them. 1 In the next chapter, we shall see 
how a definite system of law was shaped out of this mass of 
custom by the extension of jurisdiction of the King’s Court, 

10 For an account of the develop- Real Prop. (5th ed.), 288-297. 
ment of copyhold tenure from the §17. 1 See Glanv., lib. XII, cap. 
ancient customary holdings of vil- 6, and lib. XIV, cap. 8; Digby, Hist. 
lein tenants, see Digby, Hist. Law Law Real Prop. (5th ed.), 62-68. 


FKUDAL LAW 


69 


during the reigns of Henry II and Henry III, so as to form 
a single system for the entire kingdom, expressed in the form 
of decisions, and known as the common law. In this section, 
we shall consider the early development of the King’s Court 
and its relation to the administration of justice prior to the 
reign of Henry II. 

The King’s Court, succeeding to the witanagemot of the 
Anglo-Saxons, was, in theory at least, the great governing 
council of the kingdom. The king governed with the aid 
and assistance of his court, in form; but in fact, his power 
was absolute. His court during this period seems to have 
been an assemblage of courtiers subservient to the king, acqui¬ 
escing in whatever he willed to do. 2 Like the witan, the King’s 
Court was made up of the great men of the kingdom, including 
in addition to the great ecclesiastics, earls, barons, and knights, 
corresponding to the ealdormen and thegns of the zuitan. 
There can be no doubt that all tenants-in-chief were not as 
such entitled to participate as members of the court; and* 
of the classes above referred to, a comparatively small number 
actually took part in its regular meetings and deliberations. 8 
The courtiers who habitually attended the king were, no doubt, 
selected by him as the immediate members of his court. The 
principles on which the court was constituted and acted are 
extremely vague, and evidence bearing on the question is 
slight and unreliable. We get a clear notion, however, of 
a king with absolute power surrounded by courtiers whose 
advice and assistance he sought and used when convenient, 
but by whom he was in no way controlled or limited in the 
government of the kingdom. 

The king was, therefore, the source of all law, the fountain 
of justice to whom appeal could be made whenever justice 
could not be secured through the local courts in the adminis¬ 
tration of the customary law. By the time of Henry I. the 

* Stubbs, Const. Hist. Eng. (4th 3 Id., 387. 
ed), I, 386. 


70 


HISTORY OF ENGLISH AND AMERICAN LAW 


transaction of the financial business of the kingdom and the 
administration of justice were in the hands of a selected body 
of men, known as the Curia Regis when acting as the highest 
court of law, and as the Court of the Exchequer when review¬ 
ing or passing upon the financial transactions of the nation. 
These men were judges constituting a court in the modern 
sense, not mere courtiers. The Chief Justiciar presided over 
this court in the absence of the king. Apart from the com¬ 
plicated financial business transacted by this body as Court 
of the Exchequer, its legal business was made up principally 
of cases in which the king had a direct interest, cases from 
lower courts by appeal where the appellant was a man of 
sufficient power and influence to secure action by the King’s 
Court, and cases where justice could not be secured in the 
lower courts because there was no remedy there. It deter¬ 
mined all disputes arising between tenants-in-chief, such cases 
being brought in the first instance in this court. Its jurisdic¬ 
tion extended to criminal as well as to civil cases. Prior to 
the reign of Henry II, however, the Curia Regis had little 
to do with the administration of the law by which the rights 
of the great mass of the people were determined. Its justice 
was almost exclusively for the great and powerful. 4 In the 
next chapter, we shall see how the King’s Court developed 
during the reigns of Henry II and Henry III so that its law 
became the law of the land, leaving to the local courts the 
determination of the petty affairs coming within their juris¬ 
diction. 

§18. Administration of Law.—County Courts and Hun¬ 
dred Courts. —The development of the hundred and the shire 
and their courts prior to the Norman Conquest is outlined 
in the preceding chapter. 1 Neither in form nor substance 
did the Conquest make any great change in the county and 

4 Id., I, 421-422; Digby, Hist. Law & Mait., Hist. Eng. Law, I, 85-87. 
Real Prop. (5th ed.), 65, 66; Foil. §18. 1 See §4, ante. 


FEUDAL LAW 


71 


its court. The sheriff continued to be the chief officer of the 
shire, the president of the county court, the representative of 
the king in all matters of the king’s business within the county, 
appointed by the king and subject to removal by him at any 
time. He was the local representative of the king for the 
discharge of public business. 2 The county court, presided over 
by the sheriff, was made up of such of the freemen of the 
county as owed suit to the court as a burden incident to their 
holding of land. It seems that, during this period, the county 
was eventually divided into units of land, varying in size, 
each of which owed to the king the duty of furnishing one 
suitor or attendant to the county court. In practical effect, 
this burden came to rest on one freeholder of such a district, 
who had taken his land subject to this duty in discharge of 
the duty owed by the entire district, or who had, by agreement 
with the other freemen of the district, assumed this duty in 
discharge of the duty resting upon the land of all. Frequently 
the district required to furnish one suitor was a vil or town¬ 
ship. It was generally a tract of considerable size, so that 
the suitor who attended was only one of many freemen who 
resided thereon. The burden rested on all the land of the 
district; and, as between the king and the freeholders, they 
could all be held for a failure to perform this duty because 
of their holding of land so burdened; but, as among them¬ 
selves, they could arrange as they pleased for its discharge by 
any one of their number. 8 

The suitors were judges of both law and fact; all judg- 


* Poll. & Mait., Hist. Eng. Law ; 
I, 5i9. 

3 Poll. & Mait., Hist. Eng. Law, 
I, 526-530; Stubbs, Const. Hist. 
Eng., I, 424 et seq. Undoubtedly 
the members of the court were 
made up, for some time after the 
Conquest, of much the same ele¬ 
ments as before. See §4, ante. The 


complete establishment of feudalism 
and the gradual adjustment of feu¬ 
dal burdens, including the duty of 
attending the various courts, led 
eventually to the system of repre¬ 
sentation in the county court out¬ 
lined in the text, fully established 
by the time of Henry III. 


7 2 


HISTORY OF ENGLISH AND AMERICAN LAW 


ments were made by them, rather than by the sheriff as 
presiding officer. 4 The ancient forms of trial, by compurga¬ 
tion and ordeal, were used, as well as trial by battle, introduced 
by the Normans. Trial of issues by a sworn inquest of twelve 
men, also introduced by the Normans, came into more general 
use with the development of the King’s Court and the growth 
of an orderly system of reasoned law instead of the primitive 
system of customary law which prevailed up to that time. 6 

The hundred court, by the time of the Conquest, had lost 
much of its earlier importance, as we have seen, by the grant 
of its jurisdiction to territorial lords, as much of the jurisdic¬ 
tion of the court of the hundred had passed to the manorial 
court of the lord.® This process was extended under feudal¬ 
ism; by the thirteenth century, in many counties more than 
half the hundred courts were in the hands of private persons. 
Those hundred courts remaining free were often farmed out 
by the sheriff to bailiffs who took the profits and paid a rent 
for the privilege. 7 Its suitors were provided for much as 
in the case of the county courts. It tried civil cases, mostly 
of debt and trespass involving small sums. 8 The county 
courts, having jurisdiction over real property cases and 
crimes as well as personal cases of all kinds, were the important 
popular courts of original jurisdiction during the feudal period, 
limited only by the feudal or manorial courts at one extreme 
and the King’s Court at the other. We shall later consider 
the character of the customary law administered in these 
courts, and its relation to the common law as it emerged in 
the written form of decisions of the King’s Court during the 
reigns of Henry II and Henry III. 9 


4 Poll. & Mait., Hist. Eng. Law, 
L 535 - 539 - 

B Stubbs, Const. Hist. Eng., I, 
426-427. 

• See §4, ante. 


7 Poll. & Mait., Hist. Eng. Law, 
I, 544 , 545 - 

8 Poll. & Mait., Hist. Eng. Law, 
I, 544; Stubbs, Const. Hist. Eng. 
(4th ed.), I, 430. 

9 See ch. 3, post. 


FEUDAL LAW 


73 


§19. The Manor and the Manorial Court .—The practical 
workings of feudalism as a system of law and of society 
founded upon land-ownership can best be grasped by a clear 
understanding of the make-up and characteristics of the typical 
manor. The great majority of manors were coincident in 
boundaries with vils or townships. Though there were 
undoubtedly many manors which included two or more town¬ 
ships, and some townships which contained two or more 
manors, these were exceptional cases of no great importance 
to our understanding of the administration of law under 
feudalism. 1 

The manor was a tract of land or district held by the lord 
from the king. It contained, ist, the private demesne of 
the lord, land held and enjoyed by him as his private property, 
on which stood the house in which he lived; 2nd, the land of 
freehold tenants holding from the lord by military or socage 
tenure subject to the dues and services and other incidents of 
these tenures which have been outlined heretofore; 2 3rd, the 
land of villein tenants ; 3 4th, the waste or common, ownership 
of which was in the lord, but subject to the individual rights 
of the different classes of tenants to use it in common for 
pasturing their cattle, securing firewood, and the like. The 
cultivated lands of the manor or township were laid out in 
great fields, the different freehold and villein tenants owning 
definite strips, intermingled without definite rule, and worked, 
for the most part, according to the common-field method of 
agriculture. The villein tenants lived together in a village 
community of dwellings with their enclosures, and over these 
a greater degree of community control was exercised through 
the manorial court than over the freemen. They held subject 
to the customs of the manor as defined by the court of the 
lord, and were bound down to the lord because of their per¬ 
sonal status and the character of their tenure. Freehold 

§19. 1 Poll. & Mait., Hist. Eng. i See §12, ante. 

Law, I, 582-584. 8 See §16, ante. 


74 


HISTORY OF ENGUSH AND AMERICAN EAW 


tenants were free to cultivate their land as they pleased, and 
could do as they liked, so long as the dues and services incident 
to their holdings were paid or rendered. 4 The number of 
freemen in the average manor was small, the greater number 
of its inhabitants being villein tenants. 5 

Pollock and Maitland have established the fact that the 
term “manor” was not used during the feudal period with 
any degree of exactness, or with the technical significance 
which it has assumed in the hands of modern writers. 8 It 
seems to have been used in much the same free way as the 
word “estate” today. Sometimes it was used as applying to 
the manor house of the lord as well as to the district held by 
him and his tenants. The term as we use it, applies to any 
district held by a lord with tenants holding under him over 
which the lord had private jurisdiction through a manorial 
court. In whatever different senses the term may have been 
used, the institution to which it refers had a very definite 
existence, constituting the sum total of the relations between 
the lord and his tenants and between the tenants themselves, 
regulated and determined by law as administered by the 
courts. This law, during the first hundred years of feudalism 
was principally the customary law of the county courts and 
manorial courts. During the second hundred years of feudal¬ 
ism, the law of the King’s Court, or the common law, had 
displaced this customary law in determining all questions 
relating to the freehold and the freeholder’s rights in the land, 
and was rapidly displacing the customary law in determining 
the freeholder’s personal rights as well. 7 But the rights and 
duties of the villein tenant continued for a long time to be 

4 Poll. & Mait., Hist. Eng. Law, manors with only one freeholder, 

I, 612-614. See Fitz., Abr. Assize, or none at all, see Cart. Glouc., Ill, 
pi. 413; Y.B. 44 Edw. Ill, f. 18, 19, 103; Hundred Roll, II, 695, 638-639. 

as to whether freemen were subject 8 Poll. & Mait., Hist. Eng. Law, 
to local by-laws. I, 593, 594. 

5 Id., 588, 589. For instances of 7 See ch. 3, post. 


FEUDAL LAW 


75 


exclusively the business of the manorial court. The manor 
was, therefore, the district with its people under the jurisdic¬ 
tion of the court of the manor.® In the great majority of 
cases, the manor was also the township, and the court of the 
manor was also the court of the vil. In fact, the court was 
not generally called court of the manor; it was called simply 
the court of the place where it administered the law, for 
instance the court of Littleton. From the standpoint of public 
law, it was court of the township; from the standpoint of pri¬ 
vate property it was court of the manor. 9 

We have seen how, during the Anglo-Saxon time, seignorial 
jurisdiction, or in plain terms the administration of law by 
the lord over the people of his district through his local court, 
had been extended so that, by the time of the Conquest, a 
large part of the occupied land of the kingdom was subject 
to the local jurisdiction of the lord’s court 10 Under feudalism, 
this became the accepted rule, the use of the terms sac or soc 
in grants from the king no longer being essential, and, when 
used, adding nothing to jurisdiction over all questions of pri¬ 
vate law which might arise within the district granted to the 
lord. Therefore, without express words, but merely because 
the lord had tenants holding under him and for that reason 
could establish a manorial court for them, he had, as a matter 
of feudal right, jurisdiction over questions of private law aris¬ 
ing within the manor. 11 

The jurisdiction of the lord’s court over crimes which 
existed side by side with its civil jurisdiction in most cases, 
though not universally, was derived by express grant from 
the king. This seems, at the time of the Conquest, to have 
covered the entire field of crimes committed within the dis¬ 
trict ; true, also, for a considerable period thereafter. But an 
important feature of the development of the common law 

« See §16, ante. 10 See § 4 , ante. 

» Poll. & Mait., Hist. Eng. Law, “ Poll. & Mait., Hist. Eng. Law. 
I, 595 , 596 . T > 566 , 567- 


76 HISTORY OF ENGLISH AND AMERICAN LAW 

through the reforms of Henry II, was a radical change in 
the law of crimes. The doctrine of felonies, indictment and 
inquest, and punishment by death or maiming instead of the 
ancient zvites or money payments of the old law, were intro¬ 
duced and established through the king’s judges; and, as 
felonies gradually came to include most of the serious crimes, 
the local jurisdiction of the manorial court was limited more 
and more to petty offences. The ancient Saxon words used 
in the early grants of jurisdiction came to be meaningless, 
or their meaning became uncertain, hnd the later grants 
excepted the more serious crimes, so that the local feudal 
courts were left with jurisdiction over only those crimes not 
included within the jurisdiction of the king’s peace. The 
sessions of the manorial court which exercised this police 
court jurisdiction over petty crimes within the manor became 
known toward the end of the thirteenth century as the court 
leet as distinguished from the court baron, as the manorial 
court, in its disposition of civil cases, came to be called. 12 Still 
later, another branch of the manorial court took form, the 
customary court, so called, which administered the local law 
of the villein or copyhold tenants. These distinctions did not 
exist during the two centuries following the Conquest, the 
manorial court discharging all these functions as a single 
court. 13 

The manorial court’s business, apart from the criminal 
cases of the court leet, was made up of personal actions, 
including debt, detinue, trespass and covenant, actions for 
the recovery of land held in freehold tenure, all actions relating 
to villein holdings, and actions by the lord against his tenants 
for failure of duty arising out of their tenure or violation of 
manorial custom. 14 The court leet was usually the local crim¬ 
inal court of the township; the court baron and customary 

12 Poll. & Mait., Hist. Eng. Law, (5th ed.), 52-55. 

1 , 563-568- 14 Poll. & Mait., Hist. Eng. Law, 

13 Digby, Hist. Law Real. Prop. I. 574-576. 


FEUDAL LAW 


77 


court passed on the customs of the manor, regulated through 
by-laws the details of their administration, and acted generally 
as the local governmental body for the practical administration 
of local affairs. 15 

15 Digby, Hist. Law Real Prop., 54; Poll. & Mait„ Hist. Eng. Law , 

578 . 


CHAPTER III 

GROWTH OF THE COMMON LAW AND DECLINE 
OF FEUDALISM 

§20. State of the Law on Accession of Henry II .—The 
reign of Henry II marks the dividing line between the ancient 
customary law which we have been considering and the com¬ 
mon law as we understand it today. At the beginning of 
Henry’s reign, law was local rather than national. It was 
administered by the local courts of the manor and of the 
county rather than by the King’s Court, which, as we have 
seen, concerned itself mainly with the causes of the great, 
leaving to the local courts the administration of both civil 
and criminal law for the great mass of the people . 1 The most 
trustworthy commentary on the character of the law adminis¬ 
tered by these courts is the statement in Glanville’s great work, 
toward the close of Henry’s reign, in which he describes the 
customs and laws of the local courts as so various in character 
that he refused to attempt any statement of them . 2 The laws 
and customs of the Anglo-Saxons, modified in various ways 
by the introduction of Norman institutions, such as the inquest, 
continued to be the basis of private law during the two cen¬ 
turies from the Conquest to Henry’s reign. We know little 
of their details; what is known will be referred to in the 
chapters following in which will be traced the origin and 
development of the different branches of the common law. 
It was not a written law. There was little legislation affecting 
private law during this period . 8 There were no legal writers 

§20. 1 See §17, ante. Confessor, with certain additions. 

2 See Glanv., lib. XII, cap. 6, and Laws of William, (Select Char- 
lib. XIV, cap. 8. ters), ch. 7. He separated ecclesi- 

8 William decreed that the old astical from lay jurisdiction in the 
English law should prevail as it ex- hundred court. He enacted that his 
isted at the time of Edward the peace included both English and 


COMMON LAW AND DECLINE OF FEUDALISM 


79 


who were trustworthy, or who were successful in accomplish¬ 
ing anything of real value . 4 There were no reported decisions. 
The law, therefore, consisted of customs recognized and 
enforced by the courts of the county, the hundred, and the 
manor, if we leave out of consideration the law of and for 
the great as administered by the King’s Court. 


Normans, id., ch. i. All freemen 
were required to make an oath of 
fealty, id., ch. 2. In case a French¬ 
man was killed, the hundred in 
which he was slain was required to 
produce the murderer or pay a 
heavy fine, id., ch. 3, 4. Cattle 
should not be sold except in towns 
and before witnesses; men should 
not be sold beyond the seas; muti¬ 
lation was substituted for capital 
punishment, id., ch. 5, 9, 10. These 
and certain laws fixing procedure 
in cases where a Frenchman ac¬ 
cused an Englishman, and vice 
versa, were about all the legislation 
for which William was responsible. 
Poll. & Mait., Hist. Eng. Law, I, 
66, et seq. 

Henry I decreed that the laws of 
Edward should be restored; and 
that the county and hundred courts 
should be held as at the time of 
Edward. He also enacted laws re¬ 
lating to theft, restored capital pun¬ 
ishment, and established a standard 
of measures. There is no record 
of most of this legislation except 
statements made by the chroniclers. 
These enactments throw little light 
on law as actually administered. 

4 The Liber Quadripartitus, writ¬ 
ten during the reign of Henry I, is 
a translation of the old Saxon 
dooms, not very well done. There 
were to be three other books: one 


to contain important state docu¬ 
ments of the time, which was is¬ 
sued but contains little of any im¬ 
portance ; one on procedure; and 
one on theft; but these last two 
were apparently never written. See 
Poll. & Mait., Hist. Eng. Law, I, 76. 

The Leges Henrici was an at¬ 
tempt to state the law of England 
as it existed in the reign of Henry I, 
about xi 18. This seems to have 
been a mere jumble of rules thrown 
together without logical sequence 
or cohesion. But the English law 
of the time was very probably just 
such a jumble. See Poll. & Mait., 
Hist. Eng. Law, I, 77, 78. 

The Leges Willelmi I of Thorpe 
and Schmid was another statement 
of the old English law with Nor¬ 
man changes, followed by a trans¬ 
lation of parts of the code of Cnut. 
The Leges Edwardi Confessoris 
(of Thorpe and Schmid) purports 
to set forth the law of Edward the 
Confessor as stated to William by 
juries representing the different 
parts of the country. It is untrust¬ 
worthy, with much that was false 
set forth in the interest of the 
church, and is colored by political 
as well as religious prejudice. See 
Poll. & Mait., op. cit., I, 88. 

These writings prove that the 
Saxon law, modified in certain ways 
by Norman customs and institu- 


8 o HISTORY OF ENGLISH AND AMERICAN LAW 


The men of whom these courts were constituted were not 
trained lawyers; in fact, the great majority of them could 
not read and write. The sheriff who presided over the county 
court was always a man of power and position, the local rep¬ 
resentative of king and state, with a fair knowledge, no doubt,, 
of the law administered by his court. But he was not a judge. 
The suitors made the judgments of the court, and the suitors 
were for the most part illiterate. Their knowledge of law 
could have been only what they had learned by word of mouth 
from the preceding generation and by practical experience. 
The freemen who were the members of the manorial court 
could by no chance have been skilled or trained in the law. 
The lord of the manor himself was frequently illiterate. Illiter¬ 
acy was so general that a man’s ability to read was presump¬ 
tive evidence that he was a churchman. The law as adminis¬ 
tered by these courts must have been of a rude and primitive 
sort, made up of the old rules handed down by one generation 
to another as modified at any particular time by the customs 
and needs of that generation. As Glanville said, this law must 


tions, continued to be the basis of 
English law during this period. But 
feudalism introduced extensive so¬ 
cial and economic changes which 
undoubtedly affected the customary 
law. The ancient Anglo-Saxon 
language of the old dooms became 
unintelligible to the English them¬ 
selves, owing to the fact that the 
English language was at that time 
undergoing a radical change. These 
dooms were in effect obsolete, and 
could have had little to do with the 
law as administered in the local 
courts. The development of a great 
number of feudal or manorial 
courts, each tending to have its own 
customs, added to the decentral¬ 
ization and consequent confusion 
of the law. These books deal prin¬ 


cipally with crimes and private 
wrongs and the payments that 
should be made, the wer, the wife 
and hot of Anglo-Saxon law. The 
biggest question to these writers 
seemed to be, Who has jurisdiction 
over the case so as to have the right 
to try the offender and get the 
profit? With the breaking up of 
jurisdiction into a multitude of 
feudal courts with consequent con¬ 
fusion of conflicting claims thereto, 
and with the other social changes 
incident to feudalism, these old 
rules of wer and bSt were becoming 
unworkable. Nothing is clear in 
the picture of English law during 
this period except the fact of utter 
confusion. 


COMMON LAW AND DECLINE OF FEUDALISM 81 

have varied greatly in different localities, and also from 
generation to generation. Nevertheless, this customary law 
must be regarded as the common law in the making, ready 
to be put in final form as a coordinated, rationalized system 
of national law as soon as a court could be developed with 
the power and ability to declare and apply it. 

§21. The Reforms of Henry II in the Administration of 
Law .—To understand what Henry accomplished, we must 
remember that his power as a law administrator was practically 
unlimited. He stood as the source of all justice, and his court 
was simply his instrument for doing justice among his people. 
His predecessors had been content to use this supreme power 
in special cases as they arose, where the local courts failed 
to give relief and the person aggrieved was sufficiently power¬ 
ful to get the attention of the king and his court, or where 
the king or his tenants-in-chief were directly interested. The 
power of the king and his court as being supreme over all 
other courts was always recognized from the time England 
became a single state under the Anglo-Saxon king and witan. 
It remained for Henry to carry his justice to the people, 
making his court the court of the nation administering the 
common law of the land. 

He accomplished this great result very largely by changes 
in procedure made for the most part by instructions given 
to his judges rather than by formal legislation. The inquest, 
viz., the decision of a controversy by a jury of twelve men 
of the neighborhood called together to investigate the matter 
and report their finding, or to discover facts, was brought 
over from Normandy by William and was used by him freely 
in discovering the facts compiled in Domesday Book. Though 
used by the Norman kings in fiscal matters of their own, and 
occasionally in law cases in the King’s Court, the inquest had 
been used only in exceptional cases prior to Henry’s reign. He 
gradually made it the usual method of trial for all the people 


82 


HISTORY OF ENGLISH AND AMERICAN LAW 


in several kinds of cases, displacing the burdensome, irrational 
methods of trial of the customary law. 1 

The five classes of cases in which Henry introduced the 
inquest, resulting in the taking over by the King’s Court of a 
great mass of judicial business affecting all kinds of free¬ 
holders in every part of the country, were as follows, taken 
up in the order of their importance: 

1. The assise of novel disseisin. This was a new pro¬ 
ceeding, revolutionary in principle, introduced by Henry in 
1166, by which any person disseised (ousted) from his free¬ 
hold tenement without judgment of a court could command 
the writ of the king directing the sheriff to cause twelve men 
of the neighborhood to view the land and to attend the King’s 
Court at a day named, prepared to deliver their verdict in the 
matter. The sole question to be decided was whether the 
plaintiff had been wrongfully disseised by the defendant. If 
the jury found that he had been, then he recovered judgment 
at once, summarily restoring the property to his possession. 
No question of title could be raised. The King’s Court in 
this way assumed jurisdiction over all freehold estates, pro¬ 
tecting the possession by summary action. 2 Prior to this 
time, the only remedy of the ousted freeholder was by writ 
of right in which the question of better .right or ownership 
was tried out, involving great delay and expense. 

2. The grand assize. During Henry’s reign the principle 
was established that no proprietory action for the recovery 
of freehold land could be maintained except on the king’s 
writ, the writ of right above referred to. In every such case, 
brought in the lord’s court in the first instance, he decreed 
further that the tenant in possession who was being sued could 

§2i. 1 Thayer, Preliminary Trea- 2 p 0 n & Mait., Hist. Eng. Law. 
tise on Evidence, ch. 1, The Older I, 125; Digby, Hist. Law Real Prop. 
Modes of Trial, ch. 2, Trial by Jury (5th ed.), ito-tit ; Bracton, f. 164b. 
and its Development. Poll. & Mait., 

Hist. Eng. Law, I. 117-123. 


COMMON LAW AND DECLINE OF FEUDALISM 83 

remove the case to the King’s Court through the county court, 
and have the question of better right decided by a verdict of 
men of the neighborhood. Here, as in the preceding case, 
the possession of the tenant was protected. He could not be 
ousted unless summoned by writ of the king, and, if he 
demanded it, only by verdict of his neighbors. He could not, 
as before, be compelled to fight a duel for his land. It was 
natural that men should generally avail themselves of these 
remedies, avoiding the illogical and dangerous trial by battle 
or compurgation of the local courts for the new rational 
method of trial which Henry made available. 8 

3. The assise of mort d’ancestor. This was another pos¬ 
sessory action provided for by the council held at Northamp¬ 
ton in 1176. It permitted the heir of a deceased tenant seised 
of a freehold estate of inheritance at the time of his death 
to recover possession in the same summary way on the ver¬ 
dict of a jury commanded by the King’s Court to be selected 
and sworn and to report to the King’s Court as in the case 
of a novel disseisin. The only questions were whether the 
ancestor died seised of the tenement, whether the claimant 
was his heir, and whether the defendant had entered since the 
ancestor’s death. Even if the defendant had the better right 
to the property, he could not set that up. He was forced to 
secure his possession by legal means, not by self help. The 
possession was thus protected on the tenant’s death in favor 
of his heir, as against the lord or anyone else, and the remedy 
was speedy, rational, and effective. 4 

4. The assize of darrein presentment. This remedy applied 
the same principle of protection of possession to church bene¬ 
fices. The right to appoint the clergyman for a church was 
a property right of considerable value. The proprietory action 
brought to recover it had to be started in the King’s Court 

8 Poll. & Mait, I, 125, 126; Glanv., 4 Poll. & Mait., I, 127; Cas. 
lib. XII, cap. 2, 25; ii, 7; Bracton, Northampton, ch. 4. 
f. 112. 


84 HISTORY OF ENGLISH AND AMERICAN LAW 

by the king’s writ; and the claimant was required to offer 
battle which the defendant might accept, or he might demand 
a verdict of his neighbors, the grand assize. This new writ 
directed the calling of a jury to determine who had presented, 
viz., appointed the clergyman, the last time. Their verdict 
determined the right to make the next appointment as between 
the contending parties, without prejudice to the trial of the 
question of best right between them, which would proceed 
as before. The vacancy was filled, however, during the 
interval. 5 

5. The assize utrum. This was the first of the special 
writs to be employed by Henry, directing an inquest by a 
jury. It issued in a case where one of the parties claimed to 
hold the land in free alms, and where the church courts 
claimed jurisdiction. The preliminary question of whether 
the land was lay fee or alms was settled in the King’s Court 
by the verdict of twelve men specially called for the purpose.* 

In these various ways, the King’s Court, directly or indi¬ 
rectly, gained control over most of the legal business arising 
out of ownership and possession of land by freehold tenants. 
Thus a single system of law declared by a national court 
became the law of the land reaching to every part of the king¬ 
dom in the enforcement of the most important group of legal 
rights. 

The development of these important actions relating to 
the freehold was naturally accompanied by a rapid growth 
in the business of the king in issuing original writs. These 
writs had been issued by Henry’s predecessors requiring the 
defendant to appear in the King’s Court, or directing that he 
appear in the county or manorial court, and ordering that 
justice be done the complainant there with reference to the 
matter complained of. The requirement that all actions relat- 

5 Poll. & Mait., I, 127; Const. «Poll. & Mait., I, 123. 

Clarendon, ch. 1; Glanv., lib. XIII, 
cap. 18. 19. 


COMMON LAW AND DECLINE OF FEUDALISM 85 


ing to the freehold should be started by the king’s writ, and 
the development of these new forms of action started in the 
same way, tended to establish the king and his court as a 
center of justice where relief of a definite, certain kind, based 
generally on a reasoned verdict of neighbors instead of the 
perilous irrational trial by battle, or trial by ordeal, or by oath- 
helpers, could be secured by freemen no matter where they 
lived, and irrespective of the confused mass of customary law 
as administered by the county and feudal courts. The result 
was inevitable that the King’s Court and the law laid down 
by it should triumph over this customary law wherever the 
two systems came into competition. 

Henry also established the accusing jury as part of his 
system of enforcing the law. Twelve men of each hundred 
and four of each township were required to swear that they 
would disclose what men were reputed to have been guilty of 
serious crimes, felonies against the king’s peace, including 
murder, robbery, larceny, and harboring criminals. The king’s 
judges on circuit took these inquests; also the sheriff, who 
later made a round twice a year through the hundreds of the 
county taking inquests of accusing juries as to crimes com¬ 
mitted, and also as to the rights of the king to demesne lands 
and other questions of administration of the king’s business. 
This was known as the sheriff’s “turn.” 7 

All this business required a different sort of court. Instead 
of a court sitting occasionally to hear cases of the noble and 
powerful, there had to be a court practically in continuous 
session ready at all times to hear cases of ordinary people 
from every part of the country. By 1178, we know that Henry 
had established a permanent tribunal of five judges, a law 
court in the modern sense. This court sat term after term, 
generally at Westminster, often at the Exchequer. In 1180, 

T Poll. & Mait., I, 130, 131; Thay¬ 
er’s Preliminary Treatise on Evi¬ 
dence, 68, et seq 


86 


HISTORY OF ENGLISH AND AMERICAN LAW 


Glanville, the reputed author of the first textbook on the 
English law, became chief justiciar. 

The bringing of the king’s justice directly to the people 
was accomplished by sending judges on circuit throughout 
the country. Though quite generally these judges were also 
members of the central court, many of them were not. By the 
close of Henry’s reign, a fairly definite system of itinerant 
courts of the king, held generally in connection with special 
sessions of the county courts in all parts of the kingdom, had 
become established. They heard pleas of the crown, viz., 
the more serious cases of felonies reserved to the jurisdiction 
of the king’s justice; and the new possessory actions above 
referred to were tried before them. The establishment of a 
central court with travelling courts of king’s judges dispensing 
the king’s justice in every part of the country tended rapidly 
to displace the old customary law of the local courts with the 
new single system of law for the entire country. The law 
administered in this way by the king’s judges is the beginning 
of what we know as the common law. 8 

§22. Glanville’s Treatise .—The work, entitled A Treatise 
on the Laws and Customs of England, was completed about 
1188, just before the close of Henry’s reign. It is doubtful 
whether Glanville, who was chief justiciar of the king’s court 
from 1180 to the close of Henry’s reign in 1189, was author of 
the work or not. It is the first textbook on English law worthy 
of the name. It gives us an authoritative statement of the law 
as administered by the king’s judges at the close of the reign 
of Henry II. It is the real starting point of the common law 
as a national system of written law emerging from the con¬ 
fused maze of customary law of the local courts. It gives 
the measure of the accomplishment of Henry’s reign in estab- 

8 Glanv., lib. VIII, cap. 5; Madox, 

Exchequer, I, 798-801; Poll. & Mait., 

L I34-I37- 


COMMON LAW AND DECLINE OF FEUDALISM 87 

lishing a single, coordinated, rationalized system of law for 
the entire country. We have no reports of the decisions of 
Henry’s judges; the written reports started shortly after 
Henry’s death, and continued thereafter in ever-increasing 
volume. The written record of the common law, therefore, 
starts with Glanville’s treatise, our first legal classic, quickly 
accepted as an authoritative statement of the law, and is con¬ 
tinued in the long line of reported cases as decided by the com¬ 
mon law courts. 

If we are to understand the nature of the common law and 
how it originated and developed, we must grasp the meaning 
of this accomplishment of Henry’s reign and how it was 
brought about. We must appreciate the nature and extent 
of Henry’s power as a lawmaker and administrator and the 
power and authority of his judges. Summarizing what has 
gone before, we may say that Henry’s power was the closest 
approach to absolutism in English history. He and his court 
were the government; and, for the most part, his court did 
what they were told to do. But over all was the law of the 
land. Henry, like every other English king, was subject to 
the law. We have seen something of the chaotic state to which 
the law had been brought through the impact of feudalism 
and new social and economic conditions upon the Anglo- 
Saxon law. The king was always the chief administrator of 
the law. He with his court was always the court of last resort, 
the ultimate dispenser, the source of all justice. Henry’s 
judges, whether acting as a central court at Westminster or 
holding court on circuit throughout the country, had the power 
of the king as the supreme law administrator so far as he 
had delegated his power to them. The law they were called 
upon to administer was the king’s justice. For the most part, 
we do not know what that was until they declared it in their 
decisions. No doubt most of it existed in some form as part 
of the customary law which must be regarded as the raw 
material out of which the common law was created. As 


88 HISTORY OF ENGLISH AND AMERICAN LAW 

between conflicting customs of different localities, the king’s 
judges determined which should prevail as the law of the 
land. If the supreme justice of the king demanded that exist¬ 
ing rules or practices of the customary law should be modified 
or changed, they declared the rule which this ultimate justice 
demanded, and this rule became the supreme law. In other 
words, they took the raw material of the customary law, 
selected what was good, rejected what was bad, and created 
out of it all a system of law for the nation which was distinctly 
new, though based on the customs of the past and grounded 
on fundamental principles or legal concepts which in most 
cases can be traced back to the Anglo-Saxon period, in other 
cases to Roman law. That this was judicial legislation goes 
without saying. The written common law, the judge-made 
law of the cases, was created by judicial legislation. We 
shall see that every step in its development, apart from the 
statutes, has been accomplished in the same way. The law 
of stare decisis, viz., that a rule laid down and applied in an 
actual decision by a court of competent authority shall govern 
that court and all courts of coordinate or inferior jurisdiction 
thereafter, must always be interpreted with reference to this 
fundamental principle of the law’s origin and growth. 


BOOK TWO 


ORIGINS AND DEVELOPMENT OF THE LAW OF 


PROPERTY 









BIBLIOGRAPHY — BOOK TWO 
Ownership and Possession — Seisin. Chapter IV 
Pollock & Wright, Possession. 

Pollock & Maitland, History of English Law, II, 29-79. 
Holdsworth, History of English Law, III, 1-22, 81. 
Maitland, The Seisin of Chattels, Law Quarterly Review, 
I, 324; The Mystery of Seisin, Law Quarterly Review, II, 

481-496. 

Ames, Lectures on Legal History, Lecture XIX. 

Freehold Estates. Chapter V 

Pollock & Maitland, History of English Law, II, 1-28. As 
to Curtesy and Dower, id., 417-425. 

Digby, History of the Law of Real Property, (5th ed.), 
161-174, 249-258. As to Dower, id., 127-130; Curtesy, 174- 
176. 

Holdsworth, History of English Law, III, 88-102. As to 
Curtesy and Dower, id., 153-165. 

Scribner, Dower. 

Landlord and Tenant. Chapter VI 

Pollock & Maitland, History of English Law, II, 105-117. 
Digby, History of the Law of Real Property, (5th ed.), 
176-181, with translated extracts from Bracton; id., 245. 
Sedgwick & Waite, Ejectment. 

Holdsworth, History of English Lazv, III, 180-184. 

Conveyancing of Land. Chapter VII 

Digby, History of the Law of Real Property, (5th ed.), 
100-108, 157-161, 234-239, 344-367- 


92 


HISTORY OF ENGLISH AND AMERICAN LAW 


Pollock & Maitland, History of English Law, II, 80-105; 
I, 318-330. 

Holdsworth, History of English Law, III, 187-212. 

Estates in Equity, Uses and Trusts. Chapter IX 

Holdsworth, History of English Law, I, 73-135, 170-299. 
Pollock & Maitland, History of English Law, I, 168-185. 
Digby, History of the Laiv of Real Property, (5th ed.), 
Chapters VI and VII. 

Spence, Equitable Jurisdiction. 

Sugdent, Gilbert on Uses, 1-125. 

Co-ownership, Conditional Estates, Future Estates. 
Chapters X, XI, XII 

Pollock & Maitland, History of English Law, II, 20-28. 
Holdsworth, History of English Law, III, 108-118. 
Williams, Real Property, (17th ed.), 164-168, 419, et seq. 
Fearne, Contingent Remainders. 

Gray, Perpetuities, (2nd ed.). 

Incorporeal Interests. Chapter XIII 

Pollock & Maitland, History of English Law, II, 123-148. 
Holdsworth, History of English Lazv, III, 119-139. 

Digby, History of the Law of Real Property, (5th ed.), 
181-210. 

Washburn, Easements, (4th ed.). 

Development of the Law of Personal Property. 
Chapter XIV 

Pollock & Maitland, History of English Law, II, 148-181. 
Holdsworth, History of English Law, III, 266-286. 

Ames, History of Trover, in Select Essays in Anglo- 
American Legal History, III, 417-445 ; Harvard Law Review, 
XI, 277-289, 374-386. 


BIBLIOGRAPHY—BOOK TWO 


93 


Ames, Disseisin of Chattels, in Select Essays, III, 541-590; 
Harvard Law Review, III, 23-40, 313-328, 337-346. 
Holmes, Common Law, Chapter on Bailments. 

Beale, History of the Carrier’s Liability, in Harvard Law 
Review, XI, 158-168; Select Essays, III, 148-160. 

Holdsworth, History of Choses in Action, in Harvard Law 
Review, XXXIII, 997-1029. 

Inheritance and Wills. Chapter XV 

Pollock & Maitland, History of English Lazo, II, 248-361. 
Holdsworth, History of English Law, III, 141-153, as to 
Wills, II, 81-84, 149; III, 236, 237, 417-467. 

Williams, Real Property, American Notes, (17th ed.), 275. 
Bigelow, Rise of the English Will, in Select Essays in 
Anglo-American Legal History, III, 770. 

Gross, Mediaeval Law of Intestacy, in Select Essays, III, 
723 - 

Caillemer, Executor, in Select Essays, III, 746. 


CHAPTER IV 


OWNERSHIP AND POSSESSION 

§23. Introductory .—In the three preceding chapters, we 
have outlined the growth of law in England during the Saxon 
period, and the effect of the introduction of feudalism follow¬ 
ing the Norman Conquest, and have considered in some 
detail the nature of feudalism as a system of government 
through the possession and enjoyment of land. We have 
considered the nature and operation of the customary law 
through the courts of the manor, the county, and the hundred, 
and the relation thereto of the King’s Court. We have seen 
how the King’s Court was developed during the reign of 
Henry II, and how its activities were extended so as to include 
the administration of all the law relating to the freehold and 
much of the law relating to the personal rights of the people, 
and how the common law originated in the decisions of the 
King’s Court, beginning with the latter part of the twelfth 
century. 

Up to this point, we have been looking at the law princi¬ 
pally from the standpoint of government and administration. 
Feudalism was primarily a system of government based on 
land-ownership, and we have been treating it from that angle. 
We are now ready to take up private law, the origin and 
history of the rules of law by which the private affairs of 
men are regulated. We shall trace separately each of the 
great divisions of the law, taking first the subject of the private 
law of property, real and personal. 

§24. Ownership and Feudalism .—It has been quite the 
fashion to say that the king was the only ultimate or absolute 
owner of land in England; that the tenant holding possession 
of the land in fee was the tenant of his overlord, while the 
overlord was in turn tenant of the king. But the tenant in 


I 


96 HISTORY OF ENGLISH AND AMERICAN LAW 

fee who actually occupied and enjoyed the land was the real 
owner in the modern sense of ownership. The land was his 
to do with as he pleased. He could use it or waste it as suited 
his fancy. 1 The law of waste which developed in the four¬ 
teenth century, by which tenants for life and for years were 
made liable to reversioners or remaindermen for wasting the 
land held by them, had nothing to do with the feudal relation 
of lord and tenant. 2 Even the lord could not enter on the 
land of the tenant in fee except to distrain; he was as much 
a trespasser as any stranger would be, and, like any stranger, 
he had no right whatever to eject his freehold tenant without 
a judgment. 3 The land, physically, was therefore the property 
of the tenant in fee, with every right of dominion as against 
everyone else, including the lord, which we recognize as abso¬ 
lute ownership. The dues and services which belonged to 
the lord in no way constituted ownership of the land, nor 
were they limitations on the tenant’s ownership. It is true 
the lord was said to be seised of the land “in service,” while 
the freehold tenant was seised “in demesne.” But this was 
merely an artificial way of giving objective existence to a 
group of rights which were in fact purely incorporeal. From 
the standpoint of the public law, for the purpose of securing 
the services and payments gained through the feudal relation 
for public purposes, the king may be said to have been the 
ultimate owner; from the standpoint of private property there 
can be no question but that the freehold tenant in demesne 
was the sole owner of his land. 4 

§25. Seisin and Possession. —The law of property is the 
law of its ownership; it is made up of the rules governing the 
acquisition and transfer of ownership, the incidents of owner- 

124. 1 Poll. & Mait., Hist. Eng. 8 Poll. & Mait., Hist. Eng. Law, 
Law. II, 5. II, 5; Bracton, f. 217. 

2 See §49, post, as to waste. 4 Poll. & Mait., Hist. Eng. Law, 

II, 4-6. 


OWNERSHIP AND POSSESSION 


97 


ship, the different kinds of estates owned, limitations on owner¬ 
ship, etc. But back of ownership, dominating it in nearly 
every case, is the idea of seisin, or possession. The law of 
property developed around the doctrine of seisin. An under¬ 
standing of seisin is therefore a primary essential to any 
understanding of the history of property law. 

Seisin is possession. 1 During the first two centuries fol¬ 
lowing the Norman Conquest, no other word expressing the 
idea of possession was in use. The Latin terms possessio 
and possidere were used by the canon law in speaking of a 
parson as in possession of a church; but, in all the records 
which we have of the common law during these early centuries, 
seisin is the only word used to express the idea of possession. 2 
It was used just as freely with reference to personal property 
as to realty, and also to describe the possession of rights of 
various kinds which could be regarded as things. 3 Therefore 
during the early centuries following the Conquest in which 
the common law took form and emerged finally as a system 
of judge-made law laid down in written decisions, seisin had 
little of the highly technical significance which it was to acquire 
later on. It was a general expression describing the posses¬ 
sion of anything, real or personal, which could be possessed. 

With reference to real property, seisin meant possession 
of the land by a freeholder, either a tenant in fee or a tenant 
for life. A villein tenant had no interest which the king’s 
courts would recognize or protect. 4 Nevertheless, in the court 


§25. 1 The better opinion is that 
the word “seisin” is connected with 
“to sit” and “to set,” indicating 
peaceful and quiet possession. The 
word seems to have first come into 
use in England following the con 
quest by the Normans; but it was 
probably a translation of Saxon 
terms used in the same sense. The 
Saxon Chronicle speaks of “salle 


pa landsittende men,” (Chron. Ann. 
1085), and we read of different 
classes of tenants described as land- 
seti, cotseti, ferlingseti, etc. Poll. 
& Mait., Hist. Eng. Law, II, 30. 

2 Poll. & Mait., Hist. Eng. Law, 
II, 29-31. 

3 Maitland, The Seisin of Chat¬ 
tels, in Law Quarterly Rev., I, 324. 

4 See §16, ante. 


98 HISTORY OF ENGLISH AND AMERICAN LAW 


of the manor, he was said to be seised “according to the custom 
of the manor.” This was the local law of the manor, not 
the common law of the nation . 8 We shall see later why a 
tenant for years did not have seisin, and how the term “pos¬ 
session” eventually came into use to describe his holding as 
distinguished from the seisin which was in his landlord. A 
tenant for years had only a chattel interest in the land as 
distinguished from a real, or freehold, interest; and therefore 
seisin could not be in him. We have here illustrated the nar¬ 
rower meaning of the term as it came to be used with reference 
to land . 6 

As already stated, the lord was said to be seised “in service,” 
while the freehold tenant occupying the property was seised 
“in demesne.” From the standpoint of private property, the 
lord’s seisin was in fact limited to the dues and services due 
him from the land, purely incorporeal rights carrying with 
them no right of possession or enjoyment of the land. The 
lord could maintain a possessory action against his tenant if 
he resisted a lawful distress for feudal services due the lord, 
or against a stranger who might have compelled the tenant 
to render the services to him instead of to his lord, but the 
subject-matter of the action was the services, not the land. 
The freehold tenant alone could maintain a writ for the recov¬ 
ery of the land against the disseisor, who might be the lord 
as well as any stranger . 7 

The seisin of a reversioner after a life estate was of the 
same character, the life tenant holding from him as lord. A 
wrongful conveyance by the life tenant of the fee would be 
a disseisin of the reversioner, not from the land, but from 
his future incorporeal interest in the land by virtue of which 
it would revert to him on the termination of the life estate . 8 

5 Poll. & Mait., Hist. Eng. Law, * Poll. & Mait., Hist. Eng. Law, 

H. 36. II, 38, 39; Bracton, f. 217-218. 

6 See §32, post. s p 0 ii, & Mait., Hist. Eng. Law, 

II, 39; Bracton, f. 161b. 


OWNERSHIP AND POSSESSION 


99 


§26. Remedies for Protection of Seisin. — (a) The Writ 
of right .—The significance of seisin in its relation to owner¬ 
ship may best be understood in connection with the actions 
which could be brought for its protection. Prior to the reign 
of Henry II, the writ of right was the only remedy by which 
a freehold tenant could recover possession of his property 
from a wrongful holder in possession. This was distinctly 
a proprietory action in which the question of better right 
between the parties to the land in question was finally settled 
for all time. It was a slow, burdensome proceeding which 
might continue for several years. During the reign of Henry 
II, the principle had been firmly established that all actions 
involving the freehold had to originate by writ issued out 
of the King’s Court, though formerly it could be started by 
writ in the court of the manor. The demandant appeared 
and claimed the land, alleging a prior seisin of his or of some 
ancestor “as of right.” He offered battle through a champion, 
who as a witness testified to the seisin claimed by the demand¬ 
ant either of his own knowledge or at the direction, as he 
stated, of his deceased father. The tenant in possession 
against whom the action was started, denying the demandant’s 
claim, might select between two forms of trial, battle or proof 
by compurgators, or oath-helpers—the one almost as uncertain 
and illogical as the other. 1 After Henry II introduced the 
grand assize, the defendant, after the action had been moved 
to the King’s Court, could choose between a verdict of a jury 
of his neighbors and trial by battle. 2 The wrongful disseisor 
had every advantage as against the owner out of possession. 

§26. 1 Poll. & Mait., Hist. Eng. had a fairly even chance to escape. 
Law, II, 62, 63; Digby, Hist. Law Of course the idea back of this was 
Real Prop. (5th ed.) 108, 109. the superstitious notion of divine 

2 The ancient modes of trial be- intervention. In 1215, the Lateran 
fore the Conquest were (a) The Council forbade churchmen to take 
ordeal, in criminal cases, generally part in it, and it disappeared at 
the hot iron. This seems to have been once. See Poll. & Mait., Hist. Eng. 
so arranged that the accused person Law, II, 596, 597. (b) Proof by 


IOO 


HISTORY OF ENGLISH AND AMERICAN LAW 


(b) The Assize of Novel Disseisin .—Henry II met this 
situation in part by originating through his court the assize 
of novel disseisin. This was a summary action commenced 
by writ from the King’s Court directing the sheriff to summon 
twelve men to declare whether the defendant had unjustly and 
without judgment disseised the plaintiff “of his free tenement” 
in a certain township, since the time of the king’s last voyage 
to Normandy. On the return of the writ, the jury answered 
this one question, having informed themselves of the fact 


oath. The person charged with a 
crime, or the person put to his 
proof in a civil action, was required 
to make a formal oath, supported 
by the oaths of oath-helpers, who 
seem to have originally been his 
kinsmen. If he escaped by this 
means, his accuser or opponent had 
the satisfaction of knowing, as Pol¬ 
lock & Maitland point out, that he 
and his oath-helpers were exposed 
to divine retribution for perjury. 
Here also the appeal was to the 
supernatural rather than to rational 
modes of proof. Later the oath- 
helpers or compurgators were not 
necessarily kinsmen, but sometimes 
had to be selected by the litigant 
making the oath from a certain 
number designated by the court or 
by his opponent, sometimes from 
among his neighbors. They simply 
swore to the truth of his oath, or 
to its truth to the best of their 
knowledge. The usual number of 
oath-helpers required was eleven in 
addition to the chief swearer, but 
the number required in special cases 
might be less or more than that 
number. They swore in set formal 
phrase which could not be departed 
from in the slightest, or the proof 


failed and the opposing party won. 
There \vas no giving of evidence of 
facts in the modern way with direct 
and cross examination. Witnesses 
were used, but only when they had 
been formally “called to witness” 
at the time to the fact to be sworn 
to, and they swore to a set formula, 
instead of testifying under oath to 
the facts as in modern times. The 
position of a defendant, who could 
clear himself by oath-helpers, was 
obviously very much better than 
that of the plaintiff, who had to 
abide by the defendant’s success in 
making his proof, (c) Proof by 
battle was introduced by the Nor¬ 
mans. This was an ordeal in which 
the truth of the matter was sup¬ 
posed to be determined by the God 
of battles. As to all of the above, 
see Poll. & Mait., Hist. Eng. Law, 
II, 596-599; Thayer, Preliminary 
Treatise on Evidence, ch. 1. 

The introduction by the Normans 
of the inquest, the forerunner of 
the modern trial by jury, and its 
rapid growth in the King’s Court 
during the reign of Henry II, has 
been already discussed. See §21, 
ante. 


OWNERSHIP AND POSSESSION 


IOI 


during the interval. If they found that the defendant had 
wrongfully disseised the plaintiff, the court at once awarded 
judgment to the plaintiff, who recovered his land and damages 
in a way which would be considered exceedingly summary 
and expeditious even in modern times. This action absolutely 
protected the possession—even the real owner would be ousted 
by it if he had taken the law into his own hands and had 
ousted a wrongful disseisor without resorting to the writ. 
No question of better right was permitted. If the defendant 
had ousted the plaintiff without judgment awarding him the 
property, the plaintiff recovered his seisin. No question was 
litigated except the simple question of fact whether the wrong¬ 
ful disseisin complained of by the plaintiff had taken place. 8 

What was the purpose of the law in giving this extreme 
measure of protection to naked seisin, or possession? The 
answer to this question discloses the relation between seisin 
and ownership. Modern writers generally give the purpose 
of the law as the maintenance of peace and order; if the pos¬ 
session were not protected there would be an ever-open invi¬ 
tation to the strong to oust the weak. If possession of one 
without title were not protected, there would be an invitation 
held out by the law to all persons to help themselves to the 
land so possessed, with the disorder and lawlessness which 
would be bound to follow. No doubt this is one reason, and 
a very strong reason, for the protection of possession by the 
law. Yet the punishing of a wrongful disseisin as a crime 
would seem to be the logical way of meeting the situation 
in this respect. Possession has been and is protected because 
it is essential to the adequate protection of ownership, and 
this was particularly true at the time the assize of novel dis¬ 
seisin was initiated. The only remedy for the recovery of 

* Poll. & Mait., Hist. Eng. Law, 183b; The Beautitude of Seisin, 
II, 47-50; Digby, Hist. Law Real L. Q. R-, IV, 24 et seq. ; Ames, Lect. 
Prop. (5th ed.), 108-109; Glanv., on Leg. Hist., 219. 
lib. XIII, cap. 33; Bracton, f. 179, 


102 


HISTORY OF ENGLISH AND AMERICAN LAW 


land of which we know for certain as existing prior to the 
reign of Henry II was the writ of right, and we have seen 
how slow and cumbersome that was, and how uncertain and 
unjust the result of its use might be. In the very great major¬ 
ity of cases, so great that the remaining cases may be regarded 
as of slight consequence comparatively, the plaintiff in the 
novel disseisin was the true owner. The big thing accom¬ 
plished by this assize, therefore, was the giving of a prompt 
and exceedingly effective remedy to the owner by which he 
could recover his land. In the comparatively few cases where 
the plaintiff was not the true owner, public order demanded 
that his seisin or possession be protected. Even where the 
defendant was the true owner, the law required that he resort 
to legal means to recover his land, not to self-help. 4 

We see, therefore, that in practical effect seisin or posses¬ 
sion meant ownership against all the world except the real 
owner. Even in the cases where the question of “better 
right,” or ownership, was settled through a writ of right, the 
successful party succeeded by establishing an earlier seisin. 
He might be displaced in turn by someone else who could 
establish an earlier and valid seisin. Ownership was in the 
man who could establish the earliest valid seisin. Seisin, there¬ 
fore, was not only prima facie evidence of ownership; it was 
the foundation on which ownership eventually rested. 

To maintain this action, the disseisin had to be recent, or 
novel. In Normandy, the action had to be brought within 
a year following the disseisin. In England during Glanville’s 
time, the disseisin must have occurred since the king’s last 


4 Poll & Mait., Hist. Eng. Law, 
II, 40-47. Mr. Holdsworth says 
(Hist. Eng. Law, III, 84) : “The 
law protects seisin because the per¬ 
son seized is owner till someone 
else proves a better right to seisin; 
and therefore to ask why the law 
protects seisin amounts to asking 


why the law protects ownership.” 
In other words, seisin is ownership 
because the law protects it as such 
as against all not having an earlier, 
and therefore better, seisin. The 
reason for this is the real question 
we have to answer. 


OWNERSHIP AND POSSESSION 


103 


voyage to Normandy, and several of these voyages were less 
than a year apart. In 1194, when the plea rolls began, the 
disseisin must have occurred after 1189, the date of Richard’s 
first coronation. Up to 1236, the limiting date was the time 
of Henry Ill’s coronation, about 1216. In 1236 or 1237, the 
limiting date was changed to 1230. This date stood till 1275, 
when 1242 was fixed as the limiting date. This continued 
until the reign of Henry VIII, for nearly 250 years. 5 

The disseisin required the holding of possession for some 
little time by the wrongdoer, in other words the person seised 
could resist the attempted disseisin, and was given some little 
time, normally about four days, in which he could recover 
his seisin by self-help without resort to action at law. The 
disseisin was not complete until this time had elapsed. 8 

The assize of novel disseisin could be brought against the 
disseisor, and also against a third party to whom he had con¬ 
veyed the land, or who had wrongfully taken it from him, 
provided the original disseisor was still alive. This was 
accomplished by the plaintiff asserting in his writ that he had 
been disseised by the original disseisor and also by his grantee 
or disseisor. The writ was a personal action for the recovery 
of damages in tort as well as an action for the recovery of 
the land, and therefore could be brought against those only 
who could be charged with the wrongful disseisin of the 
plaintiff. The action could not be brought after the death 
of either party, or against a subsequent grantee other than 
the first grantee. 7 

(c) The assize of mort d’ancestor, already described, gave 
the same summary remedy to the heir of a deceased person 
by inquest of neighbors in case of entry by the defendant 
following the death of the person so seised, the seisin and 

5 Poll. & Mait., Hist. Eng. Law, 8 Poll. & Mait., Hist. Eng. Law, 
II, 50, 51; Ancienne coutume, ch. II, 49, 50; L.Q.R., IV, 30. 

94; Glanv., lib. XIII, cap. 32, 33. 7 Poll. & Mait., Hist. Eng. Law, 

II, 54, 55; Bracton, 175^177. 


104 


HISTORY OF ENGLISH AND AMERICAN LAW 


death of such person having been recent. If it was found 
that the deceased ancestor had been so seised, then the heir 
was summarily awarded the property as against the defendant 
who had subsequently taken possession. Even though the 
defendant had the better right, he could not assert it by self- 
help; he should have resorted to the proper proceeding at law 
to recover the property. 8 

In these cases, the heir had not been disseised. If he were 
regarded as inheriting the seisin, his remedy would be by 
the assize of novel disseisin. The later doctrine of “seisin 
at law” of the heir before entry had not been enunciated at 
the time of Glanville and Bracton. 9 The heir received from 
his ancestor a heritable right which he could exercise by entry, 
whereupon his seisin would become complete. Any person 
taking possession before entry by the heir did not become seised 
until a considerable time had elapsed during which the heir 
could enter and take his seisin by self-help without action at 
law. Instead of four days, the period was much longer; in 
Bracton’s time, the heir had a year according to the prevailing 
opinion. 10 

This assize, differing in that respect from a novel disseisin, 
could be brought against anyone holding the heir out of pos¬ 
session, whether the original interloper, or one taking from 
him by grant, disseisin, inheritance, or otherwise. The action 
was not directed against him as a wrongful disseisor, and 
was therefore unlimited in its scope as to the person keeping 
the heir out of his inheritance. 11 

(d) Writs of Entry .—We see, therefore, that a summary 
action to recover seisin, or possession, was given as against 
wrongful disseisors or their grantees if the disseisor was still 

8 See §21, ante, also Poll. & Mait., » Poll. & Mait., Hist. Eng. Law, 
Hist. Eng. Law, II, 56 et seq.; Dig- II, 60; Bracton, f. 434b. 
by, Hist. Law Real Prop. (5th ed.), 10 Poll. & Mait., Hist. Eng. Law, 

II0 - II, 61; Bracton, f. 160b, 161. 

11 Id. 


OWNERSHIP AND POSSESSION 


105 

living, and to the heir as against any intermeddler who entered 
and became seised after the death of the ancestor seised at 
the time of his death. But there still remained many situations 
where the slow and expensive writ of right with its possible 
trial by battle would have been the only remedy except for 
the development of writs of entry. 

A writ of entry sur disseisin, by which the person disseised 
could maintain a summary action for the recovery of the seisin 
against the heir of the wrongful disseisor, was made a “writ 
of course” in 1205. This writ was soon after extended to 
include a recovery by the heir of the person disseised against 
the wrongful disseisor, his heir or grantee. It was held that 
this writ could be maintained against the disseisor or his heir 
or grantee, or against the grantee or heir of such heir or 
grantee of the original wrongdoer, but not against any subse¬ 
quent heir or grantee. As the matter was put, the writ would 
be against the second, third, or fourth hand, the person dis¬ 
seised being the first hand, the wrongful disseisor being the 
second, etc., but not against the fifth, or any subsequent hand. 
This limitation to the fourth hand was without logical reason, 
and was changed by the Statute of Marlborough 11 which 
allowed a “writ of entry sur disseisin in the post,” in which 
the plaintiff recovered his seisin if he established that the 
defendant had not entered until after the wrongful disseisin 
of the plaintiff or his ancestor, and without proof as to the 
steps by which the seisin had passed from the wrongful dis¬ 
seisor to the defendant. 13 

There remained the numerous cases where the property 
had got into wrong hands without an original wrongful dis¬ 
seisin, as where a tenant for a term of years held on wrong¬ 
fully after his term had ended; where a tenant for life con¬ 
veyed in fee; where an infant or insane person had conveyed 
in fee, and the conveyance was voidable; where a bishop or 

lz Stat. Marlb., ch. 29. II, 64-67; Holdsworth, Hist. Eng 

14 Poll. & Mait., Hist. Eng. Law, Law, III, 8-11. 


io6 


HISTORY OF ENGLISH AND AMERICAN LAW 


abbot had conveyed the land of the church without authority. 
In these cases, the person seised had acquired his seisin with¬ 
out wrong on his part. The hardship of requiring the owner 
to recover his land in these cases by writ of right, with all 
the delay and expense, difficulty of proof and danger which 
were incident to it, led to the formation of an extensive set 
of writs of entry by which the seisin, or possession, could be 
recovered as in the other cases without going into the question 
of better right, proof not going back of the seisin of the plain¬ 
tiff and the entry of the defendant or his predecessor in interest 
on which the action was based. The writ set forth the invalid 
entry by which the defendant or his predecessor in interest 
acquired title. The plaintiff might be the original owner or 
his heir. These writs, like the writ of entry sur disseisin, 
were limited to the fourth hand; but here also the Statute of 
Marlborough 14 removed this limitation. These writs, together 
with the assizes of novel disseisin and mort d’ancestor, covered 
the ground pretty completely, so that the writ of right was 
required only in unusual cases, or where so long a time had 
elapsed that the possessory actions were barred. 15 

Though in Bracton’s time writs of entry were regarded as 
in some degree proprietory, since they touched upon proprietory 
right, 16 there can be no doubt that they were possessory only 
because the defendant was precluded from proof of a better 
right antedating the invalid entry by which he had secured 
possession. The question of better right was always left open 
to final settlement by the writ of right. 17 

These ancient actions for the recovery of seisin prove con¬ 
clusively that seisin is ownership as against all but those who 


14 Stat. Marlb., ch. 29. 

15 Poll. & Mait., Hist. Eng. Law, 
II, 68-70. See Holdsworth, Hist. 
Eng. Law, III, 14, 17, also 1-22, con¬ 
taining a list and brief discussion of 
the leading real actions. 


16 Bracton, 317b. See also Fleta, 
360; Britton, II, 296. 

17 Poll. & Mait., Hist. Eng. Law, 
II, 71 - 73 - 


OWNERSHIP AND POSSESSION 


107 


can show an earlier seisin; that this ownership may be con¬ 
veyed or descends to the heir; that it is protected at all times, 
whether there be a better right in another or not, against 
subsequent disseisin or wrongful possession by third persons. 
The wrongful disseisor or other wrongful possessor who is 
subject to one of the possessory writs is just as fully pro¬ 
tected as the man he has wronged against a similar wrong 
committed against him subsequently by any person, even by 
the man whom he has disseised, who has taken the law into 
his own hands by taking forceful possession. 

Even the writ of right did not finally settle the question 
of better right except as between the parties. A third party 
was not precluded from suing out a writ of right and estab¬ 
lishing an earlier seisin as against the successful party in 
the first action. We see, therefore, that the earliest seisin 
which can be established under the law is the ultimate title. 
Thus seisin is the basis of ownership . 18 


18 Poll. & Mait., Hist. Eng. Law, 

II, 74-76. 

As Mr. Holdsworth points out 
(Hist. Eng. Law, III, 81), the law 
logically makes good its conception 
of seisin as ownership for the time 
being, 1st, by giving to the person 
seised, though wrongfully seised, 
the full rights of ownership. He 
might convey an estate in fee sim¬ 
ple. “Every tenant by disseisin has 
a fee until his estate be defeated.” 
Y.B., 11,12 Edward III (R.S.), 202. 
His heir inherited on his death. 
Bracton, f. 435; 15 Edward III 
(R.S.), 330. Dower and curtesy 
attached to the disseisor’s interest. 
Y.B., 13, 14 Edward III (R.S.), 
314, 316; L.Q.R., II, 488; Eitt., 


§§393, 394- The usual incidents of 
tenure applied to his estate, as 
though he were seised of right. 
L.Q.R., II, 487, 488; Y.B. 17, 18 
Edward III (R.S.), 3 2 4- 2nd, by 
refusing to recognize any rights of 
ownership in the real owner who 
had been disseised until he had en¬ 
tered or recovered his seisin by en¬ 
forcing his right of entry by suit. 
He had a mere right or chose in 
action, not ownership of the land, 
and therefore could not convey 
since he could not make livery of 
seisin. Dower and curtesy did not 
attach to the disseisee’s right of en¬ 
try. It descended to his heir, how¬ 
ever, subject at a later time to stat¬ 
utes of limitation. 


CHAPTER V 



FREEHOLD ESTATES 

§27. Estates in Fee .—Most of what needs stating with 
reference to estates iij fee has already been said in the preced¬ 
ing chapter. That the tenant in fee was the owner with abso¬ 
lute dominion over his land, and that his lord was owner of 
certain incorporeal rights in the land without ownership or 
seisin of the land itself, must be accepted as established. His 
right to defend and recover his seisin, and therefore his 
ownership, by the possessory writs and the writ of right, 
giving him absolute control as against all other men including 
his lord, has been explained in some detail. 

The chief characteristic of an estate in fee is that, if not 
conveyed, it will pass by inheritance to the heir or heirs of 
the owner, and to the heirs of such heirs from generation to 
generation for all time. This makes the estate of infinite 
duration, since the line of heirs, direct or collateral, may con¬ 
tinue forever. No matter how many successive life estates 
may be created by the owner in fee, the fee itself, of infinite 
duration, continues in him, so that the property will revert 
to him when the finite estates so created come to an end; or 
if he has granted this reversion to another, it will ultimately 
revert to that other, or remain out in any third person to whom 
the fee has been given by the same instrument creating the 
life estates. 1 

There can be no doubt that estates in fee, inheritable in 
equal shares by the heirs, usually the sons of the owner, from 
generation to generation according to the customary law, 
were the usual holdings of freeholders during the Saxon 
period. 2 The holdings of churches, king’s thegns, and other 

§27. 1 Poll. & Mait., Hist. Eng. 2 See §5, ante. 

Law, II, 10-12. 


FREEHOLD ESTATES 


109 


great men of extensive tracts by book, or charter, from the 
king and witan, bookland as distinguished from folkland, were 
inheritable in the same way by express provision of the books, 
or charters, by which they were created. There can be little 
doubt that they would have been equally inheritable had there 
been no such provision in the books creating them. 3 The 
Normans modified this by introducing the principle of primo¬ 
geniture, the eldest male heir inheriting instead of all sons 
or other male heirs in equal shares. 4 The form of the gift or 
grant creating the estate determined whether it was an estate 
of inheritance or for life only. It was essential to the creation 
of a fee that the gift be to the feoffee (grantee today) and 
his heirs. This was construed not merely as a gift to the 
immediate heir or heirs of the grantee, but the heirs of such 
heirs from generation to generation forever. That the form 
of the gift was regarded as giving some sort of vaguely defined 
interest to the presumptive heirs who might be in existence 
at any given time, is supported by the rather vague limitations 
upon the right to convey in favor of such heirs during the 
Saxon period and down through the time of Henry II fol¬ 
lowing the Conquest. 6 These limitations, at any rate, silently 
disappeared early in the thirteenth century, and thereafter 
the word “heirs” in the gift was construed simply as a word 
of limitation defining the estate created as an estate of inherit¬ 
ance to continue for all time, in other words, as an estate in 
fee, the heir taking by inheritance only in case the ancestor 
had not disposed of the fee during his life.® 


8 Id. 

4 See §84, pos* 

5 See §37, post, as to alienation. 
That the owner in fee had to get 
the consent of his presumptive heirs 
in order to convey his land in fee, 
was certainly true in many cases. 
The exact limits of this doctrine, 
and the principles on which it de¬ 


pended, are today extremely vague. 

6 Poll. & Mait., Hist. Eng. Law, 
II, 13; Digby, Hist. Law Real Prop. 
(5th ed.), 16i. 

Early in the thirteenth century 
two changes appeared in the char¬ 
ters of the period, (a) the pre¬ 
sumptive heirs of the donor no 
longer joined as parties to the gift, 


no 


HISTORY OF ENGUSH AND AMERICAN LAW 


Considerable learning has appeared in the books with refer¬ 
ence to the development of the legal conception of estates. The 
term “estate” apparently was not used in Bracton’s time, 
though it came into use in the modern sense shortly after, 
as the Year Books show. 7 Nevertheless, it cannot be denied 
that the conception of what we call an estate in fee simple 
and an estate for life goes back through the early feudal and' 
Saxon times to the beginnings of the history of English law. 
An estate inheritable by the owner’s heirs forever is not a 
life estate followed by an estate in his presumptive heirs, in 
turn for their lives with a similar estate in their presumptive 
heirs, and so on from generation to generation. There is 
no real evidence that there was ever such a conception of the 
absolute owner’s interest, and every reasonable inference is 
against it. It is altogether too complicated for a primitive 
people and time. The land-charters, or books, of the Saxons 
created absolute estates in fee simple in the modern sense. 
Though free alienation and disposition by will were provided 
for in express terms in these charters, we have seen that the 
effect was probably to remove the restrictions on absolute 
disposition in favor of heirs which bound folkland under the 
customary law, rather than to create those rights. 8 We know 
that the owner was restricted by the customary law during 
Saxon times from conveying or devising all of his land away 


and (b) the gift was to the donee, 
his heirs, and assigns. See Poll. & 
Mait., Hist. Eng. Law, II, 14, note 
1. The introduction of the word 
“assigns” may have been with the 
purpose of preventing the termina¬ 
tion of the estate after a convey¬ 
ance if the feoffor (grantor) should 
die without heirs. At any rate, 
though there are suggestions in 
Bracton to the contrary, the gen¬ 
eral rule even at that early time 
seems to have been that the estate 


would not be affected by failure of 
heirs of a former owner, the word 
“heirs” in the grant being recog¬ 
nized as a word of limitation de¬ 
scribing an estate in fee, the heirs 
of the grantee taking the place of 
the heirs of the grantor. See Poll. 
& Mait, Hist. Eng. Law, II, 14. 

7 Poll. & Mait., Hist. Eng. Law, 
II, 11, citing Y.B., 20-21 Edward I, 
39 - 

8 See §5, ante. 


FREEHOLD ESTATES 


III 


from his heirs. We know very little of these limitations, but 
the reasonable inference from what Glanville had to say about 
it is that there was no absolute right of veto held by the pre¬ 
sumptive heirs—conveyances not unreasonably reducing the 
property which the heirs might inherit would probably be 
good without their assent. The Saxon and early Norman 
conception of what came to be called later an estate in fee 
simple was of an interest in the owner which might last 
forever descending to the heirs from generation to generation 
by inheritance, not because they had been named as parties 
under the original gift. In fact, the word “heirs” was prob¬ 
ably not generally used in Saxon times, in conveyances of 
land absolutely. 9 Such right as presumptive heirs had was 
by virtue of rules limiting the owner’s power of disposition 
by conveyance or will in the interests of public policy, not 
by virtue of any right in the nature of an estate or interest 
in the land belonging to the heirs. 

No doubt the “form of the gift,” expressing the intent 
of the parties, was given greater freedom during the forma¬ 
tive and progressive thirteenth century than during the next 
two centuries, when the law settled along hard and fast lines, 
displacing reason and common sense in many instances with 
empty technicality. This was particularly true of future 
estates, as we shall see. 10 In so far as present estates in fee 
and for life are concerned, they have always been fully recog¬ 
nized, subject to the limitations above referred to. The modifi¬ 
cations introduced by the “form of the gift” through the 
law’s giving effect to the donor’s intent, had to do principally 
with future contingent estates. We shall see that this early law 
eventually became the prevailing law, and that the intent of the 
parties to a conveyance will be given effect when affirmatively 
expressed unless in violation of some rule established by the 
law founded on public policy. 11 

9 See §40, post. 

10 See ch. 12, post. 


11 See preceding note. 


112 


HISTORY OF ENGUSH AND AMERICAN LAW 


§28. The Conditional Fee and the Estate in Fee Tail .— 
At the beginning of the thirteenth century, gifts to a man 
“and the heirs of his body,” and gifts to a man and wife “and 
the heirs of their bodies” began to be frequent. Pollock and 
Maitland say that every tenth fine, approximately, levied 
during the first years of the reign of Edward I and the last 
years of his father’s contained a provision of this kind. 1 Before 
the end of the reign of Henry III, the courts had construed 
these limitations as creating estates in fee subject to the con¬ 
dition that a child be born to the donee; on the birth of such 
a child the condition w r as performed so that the donee could 
convey a fee free from the condition, which would therefore 
be absolute. Nevertheless, if he did not convey away the 
land and died without issue surviving him, his estate ended, 
and the land reverted to the donor. In other words, though 
a conditional fee with the condition performed, it could not 
be inherited by collateral heirs, but only by the heirs of the 
body of the donee as provided by the terms of the gift. This 
peculiar result can be accounted for only by ascribing to the 
courts a strong tendency to favor free alienation, the courts 
treating the condition as performed so as to permit alienation 
in fee on the birth of a child, but nevertheless giving effect 
to the limitation of the class of heirs who could inherit in 
case the right to alienate had not been exercised and no child 
of the donee had survived him. 2 


§28. iPoll. & Mait, Hist. Eng. 
Law, II, 16. 

2 Pollock & Maitland suggest the 
following explanation of this incon¬ 
sistent position: “When these limi¬ 
tations were first attempted, the 
donor frequently made the gift ‘to 
X and his heirs if he shall have an 
heir of his body’ almost as fre¬ 
quently as ‘to X and the heirs of 
his body.’ The first form clearly 
imports a conditional gift in fee, 


the condition being the birth of an 
heir. It would be a simple step to 
ascribe the same meaning to the 
gift ‘to X and the heirs of his 
body.’ ” This, however, does not 
explain why the fee could not be 
inherited by collateral heirs after 
performance of the condition. The 
true explanation is that treating the 
birth of a child as a condition was 
simply a device by which the estate 
was made subject to free alienation 


FREEHOLD ESTATES 


113 


In 1285, the Statute De donis conditionalibus was enacted, 
the purpose of which was to prevent the loss of the escheat to 
the donor on failure of issue through these conveyances after 
the birth of a child, and also to protect the heirs of the body 
of the donee. The statute provided that the inheritance of 
the heir was not defeated by such a conveyance, nor was the 
right of escheat of the donor, but the heir could recover the 
land on the death of the ancestor from any person to whom 
it might have been conveyed, and if no heir survived, then 
the original donor could recover it by virtue of his right of 
escheat. 3 

The effect of the statute, as interpreted by the courts, was 
to change the conditional fee into the estate in fee tail of the 
modern law. Since it could be inherited only by the heirs of 
the body of the tenant in the direct line of lineal descent, and 
since it would end whenever the direct line should become 
extinct, it was regarded as less than a fee simple absolute, 
an estate taille —cut off—from the fee. It followed, of course, 
that the fee simple remained in the donor as a reversion. 
Therefore any number of estates tail could be created in dif¬ 
ferent persons in succession, the ultimate reversion in fee 
simple continuing in the donor because not disposed of in the 
creating of the estates tail. 4 

An odd situation which throws considerable light on the 
general character of legal development during the formative 
period of Henry II and Henry III—of Glanville and Bracton— 
is the well established fact that successive conditional fees 
were regarded as perfectly valid prior to the Statute De donis. 
Bracton specifically states that land might be given to A and 
the heirs of his body, and on failure of such heirs, to B and 


in spite of the limitation to a par¬ 
ticular class of heirs. See Poll. & 
Mait., Hist. Eng. Law, II, 16-18; 
Digby, Hist. Law Real Prop. (5th 
ed.), 162, et seq., 222, 223. 


3 This statute was the first chap¬ 
ter of the Second Statute of West¬ 
minster. Stat. 13 Edward I, ch. 1. 

4 Digby, Hist. Law Real. Prop. 
(5th ed.), 223-225. 


HISTORY OF ENGLISH AND AMERICAN LAW 


114 


the heirs of his body, and so on. Such gifts were common 
during the final years of Henry Ill’s reign and the first years 
of Edward I. Pollock and Maitland found in their research 
that about one out of every two fines of this period which 
created conditional fees, created a remainder to take effect 
on failure of issue of the donee of the conditional fee. A great 
deal of what was purely technical and without reason in the 
law of future estates as it developed thereafter would have 
been avoided if this principle permitting a fee upon a fee, 
even though conditional, had not been lost thereafter in the 
turning of conditional fees into estates tail. The fact remains 
that, for about forty years, the law saw nothing reprehensible 
in a fee upon a fee in these cases—the only cases apparently 
in which that question had arisen up to that time. 5 We shall 
refer to this again in connection with future estates. 6 

After the enactment of the Statute De donis conditionalibus, 
the law relating to estates tail was developed and expanded 
by a constant stream of judicial decisions. In all cases where 
words of procreation were used in addition to the word 
“heirs,” the gift was interpreted as an estate tail, though not 
coming within the exact terms of the statute. But the omis¬ 
sion of either words of inheritance or words of procreation 
was fatal to the creation of an estate tail. 7 

An estate tail general was the usual general limitation to a 
person and the heirs of his or her body generally; an estate 
tail special was created where the heirs of the body were limited 
to the issue of the donee by a certain husband or wife, as the 


5 Poll. & Mait., Hist. Eng. Law, 
II, 23-25. 

6 See ch. 12, post, as to future 
estates. 

7 “As if a grant be to a man and 
the issue of his body, to a man and 
his seed, to a man and his children, 
or offspring; all these are only es¬ 
tates for life, there wanting the 


words of inheritance, his heirs. So 
on the other hand a gift to a man 
and his heirs male, or female, is an 
estate in fee simple and not in fee 
tail; for there are no words to 
ascertain the body out of which 
they shall issue.” Bl., Comm., II, 
II 5 - 


FREEHOLD ESTATES 


115 

case might be. If this husband or wife died during the life of 
the donee without issue surviving, the donee was what was 
known as a “tenant in tail after possibility of issue extinct.” 
An estate tail male was an estate limited to the heirs male of 
the body of the donee, and an estate tail female arose in case 
of a similar limitation to the donee’s female heirs. 8 

The Statute De donis did not absolutely bar conveyances 
by the tenant in tail; it merely made such conveyances 
ineffective as against the heir, if such survived the donee, 
and as against the donor as reversioner, in case of a failure of 
issue at any time. The doctrine of warranty complicated the 
application of the statute in giving the heir a right to recover 
the land as against the tenant in tail’s feoffee. Where a man 
conveyed an estate in fee with warranty, he was bound to 
give the feoffee lands of equal value if he should be ousted 
by one having a superior title. This bound the heirs of the 
feoffor, so that his heir could not, at any rate, dispute the 
right of the feoffee to whom the ancestor had conveyed the 
land. The application of this doctrine would have prevented 
the heir of the tenant in tail from disputing the title of his 
father’s feoffee, provided the conveyance had been made with 
warranty, only the courts decided that the doctrine of war¬ 
ranty would not bind the heir unless he had inherited from 
his father property equaling in value the land in tail so con¬ 
veyed by his father, technically known as assets of equal value. 
Of course, this doctrine in no way affected the right of the 
original donor to enforce his reversion on failure of issue. 
Purchasers of estates tail would hardly pay more than the 
value of the life interest of the tenant in tail under these cir¬ 
cumstances ; so the conveyance of estates tail in fee was effectu¬ 
ally barred. This continued until the reign of Edward IV, 

8 Digby, Hist. Law Real Prop. statutes but were recognized by the 
(5th ed.), 249, 250. Estates tail courts as coming within its equity, 
male and female did not come Litt., §31. 
within the express terms of the 


n6 HISTORY OF ENGLISH AND AMERICAN LAW 

when, by a series of fictions, the court worked out a way by 
which estates tail could be conveyed in fee simple so as to 
bar the entail. 9 

This was called a common recovery. It was a fictitious 
and prearranged suit in the form of a writ of right started 
by the person to whom the property was to be conveyed in 
fee simple. He would allege (of course falsely) that he was 
the owner of the property in fee simple by a title superior 
to the defendant’s; that the defendant had no title to the land, 
having come into possession of it after the complainant had 
been wrongfully ousted therefrom by some third person 
named. The defendant, tenant in tail, would then appear, 
making no denial of the complainant’s allegations, but calling 
upon one X, alleged to be the man who had conveyed the 
land to him in tail with warranty, to appear and defend the 
title which he had warranted. X would then appear and 
defend the title, but afterwards would default, and thereupon 
judgment would be given to the complainant that he recover 
the land in fee simple, and to the tenant in tail that he recover 
from X lands of equal value in recompense for the lands 
alleged to have been conveyed by. X with warranty to the 
tenant in tail. X, the vouchee, selected to take this pretended 
part because judgment proof, was usually the court crier, 
and came to be called the common vouchee because used so 
frequently in this capacity. He, of course, had never any 
interest in the property, the whole matter being a fiction in 
so far as his connection with the suit was concerned. The 
judgment against him for an equal amount of land in favor 
of the tenant in tail and the heirs of his body was regarded 
as sufficient recompense for the loss of the entail by such 
heirs; so that the recovery suffered by the tenant in tail was 
binding as against them, the complainant taking by virtue 

9 This was done in Taltarum’s case see Digby, Hist. Law Real 
Case. Y.B., 12 Edward IV, 19. For Prop. (5th ed.), 255 et seq. 
translation of the pleadings in this 


FREEHOLD ESTATES 


ii 7 

of the judgment an estate in fee simple which cut off the 
entail in favor of the heirs of the body of the tenant in tail, 
and also the reversion of the original donor, it having been 
judicially determined that the complainant’s title in fee simple 
was superior to the title of the tenant and his donor. Pur¬ 
suant to the prearranged plan, the complainant would then 
convey the land in fee to the tenant in tail, or convey to another 
at the tenant’s direction, or pay the tenant the purchase price 
agreed upon in case an actual sale to him was intended. 10 

From the time of Taltarum’s case until 1834, tenants in 
tail used this method to bar the entail and convert their interest 
to an estate in fee simple. A statute enacted during the reign 
of Henry VIII permitted the barring of entails by a fine. 11 

Fines and recoveries were abolished by statute in 1834; 
and, by the same statute, tenants in tail were permitted to 
defeat the entail by conveying the land in fee simple by deed 
enrolled in the Chancery Division of the High Court of 
Justice. 12 

In the United States, estates tail have been quite generally 
abolished by statute and converted into estates in fee simple. 
In some states, the estate tail is changed into a life estate 
in the first taker with remainder in fee simple to his child 
or children. In other states, the remainder in fee on such 
life tenant’s death passes to such persons as would be entitled 
at common law to take the land on the death of the first taker. 
In Massachusetts and several other states, they may be con¬ 
veyed in fee simple and levied on and sold as such by creditors, 
but until conveyed in fee simple they continue as estates tail. 13 

§29. Estates for Life .—Ownership of land to continue 
during the life of the owner, known as a life estate after the 

10 Bl., Comm., II, 357-362; Digby, Williams, Real Prop. (17th ed.), 
Hist. Law Real Prop. (5th ed.), 109; Digby, Hist. Law Real Prop. 

253-255; Williams, Real Prop. (17th (5th ed.), 254. 
ed.), 105-108. 13 For references to the statutes 

11 32 Henry VIII, ch. 36. in the United States see Walsh, 

12 Stat. 3 & 4 William IV, ch. 74; Real Prop., 140, 14*. 


n8 


HISTORY OF ENGLISH AND AMERICAN LAW 


fourteenth century, was undoubtedly common during the 
Saxon and early Norman times. Indeed it has been sug¬ 
gested in the most recent treatment of this subject that all 
so-called absolute ownership might have been regarded as 
life estates more than anything else, because the restrictions 
on transfers of land by conveyance or by will left to the owner 
little more than the right of enjoyment during his life. 1 This 
is merely a phase of the vexatious question of the nature of 
ownership while restrictions on alienation by conveyance or 
will for the benefit of presumptive heirs or overlords inter¬ 
fered with owners in the free disposition of their property. 2 
But however the owner of such an estate might regard his 
interest, we know that it was an estate of inheritance and 
that his heirs could not possibly be regarded as taking as 
purchasers from generation to generation. Estates for life 
which the heirs could not inherit undoubtedly existed more 
or less commonly during the Saxon and early Norman 
periods, 3 and these are the subject-matter of this section. In 
the thirteenth century, the tenant for life was a freeholder, 
holding by feudal tenure from his lord. He had exactly the 
same quality of ownership as the tenant in fee, the same right 
to protect or recover his possession or to establish his right 
by means of the various writs heretofore discussed. 4 The 
estate differed from a fee, not in quality but in duration. 
Whenever the word “heirs” was omitted in a feoffment of 
land, a life estate arose. There could be any number of finite 
life estates created in succession by the owner of the fee, the 


§29. 1 Holdsworth, Hist. Eng. 

Law, III, 103. 

2 See latter part of §27, ante, 
where this matter is discussed. 

3 We know that a common form 
of the Saxon laens was for a life 
or lives; and it is reasonable to 
infer that similar interests existed 
in land held under the customary 


law, viz., folkland, particularly land 
of the state held by tenants paying 
rents or other returns. See §5, ante. 
Similar interests continued to exist 
during the century and a half fol¬ 
lowing the Conquest under feudal¬ 
ism. 

4 See §26, ante. 


FREEHOLD ESTATES 


119 

fee continuing as a reversion in the donor of the life estates, 
or in such person as may have succeeded to his interest there¬ 
after, whether by gift or by inheritance. 5 By a collusive recov¬ 
ery, the life tenant could destroy the interest of a remainder¬ 
man and force the reversioner to resort to a writ of right. 
But, in 1285, the Statute of Westminster II permitted the 
remainderman recovery of the land in such a case by a writ 
of right. 5 

His ownership was subject to one limitation from which 
ownership in fee was free, and that was liability for waste 
which developed through the Statutes of Malbridge and Glou¬ 
cester in the latter part of the thirteenth century. As the sub¬ 
ject of waste affects tenancies for years as well as tenancies 
for life, it will be dealt with separately hereafter. 7 

Estates pur autre vie arose wherever a tenant for life 
alienated his interest. This has always been the most usual 
case of such estates, though they would arise in any case 
where the estate conveyed was measured by a life or lives 
other than that of the donee. The early law seemed doubt¬ 
ful of the nature of this interest, whether freehold or chattel 
real. Bracton seems to have treated it as a chattel real which 
the owner might bequeath by will; if he did not do so, it 
reverted to the donor. 8 A little later it was regarded as a 
freehold. 9 All question of this was gone by the fourteenth 
century; and in Littleton’s time, the liability of such tenants 
for waste was settled doctrine. 10 The peculiar situation arising 
where the tenant died before the death of the person whose 
life measured his estate is discussed in the notes. 11 


0 Poll. & Mait., Hist. Eng. Law, 

II, 7-10. 

a Holdsworth, Hist. Eng. Law, 

III, 103; Litt., 481; 13 Edward I, 
1, ch. 3. 

7 See §49, post. 

8 Bracton, f. 13b, 27, 263; Eleta, 
193 . 289. 


9 Hengham, Parva, ch. 5. See 
Poll. & Mait., Hist. Eng. Law, II, 
81. 

10 Britton, II, 124, n.c.; Litt., §57; 
Co. Litt., 41b, cited Holdsworth, 
Hist. Eng. Law, III, 106. 

11 At common law, a peculiar sit¬ 
uation arose in case the tenant died 


120 


HISTORY OF ENGLISH AND AMERICAN LAW 


§30. Dozver .—The estate which the law gives to the widow 
in one-third of her husband’s real property is a life estate of 
freehold, as is the corresponding estate of curtesy in the hus¬ 
band; and some outline of their history belongs, therefore, 
to this chapter on freehold estates. 

Tacitus referred to the dowry conferred by the husband 
upon the wife among the Germanic tribes . 1 It seems to have 
been a custom among the Germans for the husband to make 
a gift of land or chattels to the bride, and we have many 
forms preserved of an instrument executed by the husband 
or his father before the marriage specifying what this gift 
should be. A more usual form of dower among the Saxons 
was the “morning gift,” of land or chattels, made to the wife 
by the husband on the morning following the marriage . 2 The 


during the life of the third person 
whose life measured the estate. It 
could not pass to the tenant's heir, 
as it was not an estate of inher¬ 
itance, nor to his personal repre¬ 
sentative for the additional reason 
that it was a freehold interest in 
land. The reversioner or remain¬ 
derman was not entitled to it be¬ 
cause the reversion or remainder 
could not vest in possession until 
the death of the third person whose 
life measured the estate. The re¬ 
sult was that any person entering 
on the land could hold it by virtue 
of his seisin, no one being able to 
show a better title. If it was given 
to the tenant “and his heirs” for the 
life of the third person, the courts 
held that the heir of the life tenant 
could enter ahead of others as spe¬ 
cial occupant, but not by right of 
inheritance. In England by statute 
(29 Charles II, ch. 3), it was pro¬ 
vided that the life tenant could dis¬ 
pose of this interest by will, and, 


if not devised, the heir took as spe¬ 
cial occupant, and was chargeable 
with it as assets by descent. By 
statute 14 George II, ch. 20, it was 
provided that if the heir was not 
named as special occupant, and if 
it was not devised by the tenant’s 
will, it passed as personal property 
to be administered by his personal 
representative. 

In the United States, by statute, 
in some states, this interest passes 
as a chattel real to the personal rep¬ 
resentative on the death of the life 
tenant; in other states, by statute, 
this interest descends to the heirs 
of the tenant as realty if not dis¬ 
posed of by will. For the common 
law rule see Bl., Comm., II, 259; 
Kent, Comm., IV, 26-28; Atkinson, 
v. Baker, 4 Durn. & East 229. For 
the law in the United States see 
Walsh, Real Prop., 145. 

§30. 1 Tacitus, Germ., ch. 18. 

2 The Laws of Ethelbert (ch. 81), 
provided that the morgan gifu 


FREEHOLD ESTATES 


121 


first clear and positive statement of the law of dower appears 
in Glanville’s treatise. This early law required that the wife 
be endowed at the church door at the time of the marriage, 
no doubt because that practice gave notoriety to the trans¬ 
action. If the dower was specified, the wife was limited to 
the land or other property mentioned, though less than one- 
third of the land of which the husband was then seised. If 
not specified, she took one-third. A third part or less of land 
that might be acquired thereafter by the husband might be 
expressly given; but if not mentioned at the church door, 
she was limited to the third of which the husband was then 
seised. Dower in chattels was recognized in Glanville’s time. 3 
By the time of Henry IV, dower in personalty was expressly 
repudiated. 4 In 1217, an addition to Magna Carta gave to 
the wife dower in one-third of all the land of which the hus¬ 
band was seised during the marriage, unless she were endowed 
of less at the church door. 5 In spite of this, the law seems 
to have continued for a time to limit her dower to the lands 
of which the husband was seised at the time of the marriage, 
subsequently acquired lands not being included unless expressly 


should pass to the wife's paternal 
kindred if there were no issue of 
the marriage. See Digby, Hist. Law 
Real Prop. (5th ed.), 128, note 4. 

3 Kemble, Code Dipl., I, cx. 
Glanv., lib. VI, cap. 1, 2. 

4 Bl., Comm., II, 134. 

5 Magna Carta, ch. 7: “A widow, 
after the death of her husband, in¬ 
continent, and without any diffi¬ 
culty, shall have her marriage, and 
her inheritance, and shall give noth¬ 
ing for her dower, her marriage, 
or her inheritance, which her hus¬ 
band and she held the day of the 
death of her husband; and she shall 
tarry in the chief house of her hus¬ 


band by forty days after the death 
of her husband, within which days 
her dower shall be assigned her, if 
it were not assigned her before, or 
that the house be a castle; and if 
she depart from the castle, then a 
competent house shall be provided 
for her in the which she may hon¬ 
estly dwell, until her dower be to 
her assigned, as it is aforesaid; and 
she shall have in the meantime her 
reasonable estovers of the common; 
and for her dower shall be assigned 
to her the third part of all the lands 
of her husband which were his dur¬ 
ing coverture, except she were en¬ 
dowed of less at the church door." 


122 


HISTORY OF ENGLISH AND AMERICAN LAW 


provided for at the church door. 6 A little later, however, 
the rule became settled in accordance with the literal expression 
of Magna Carta that dower extended to all the land of which 
the husband was seised during coverture. 7 Still later, it became 
law that she could not have less than this, though she might 
be entitled to more, even to all of her husband’s lands, if given 
to her at the church door. 8 In socage land, one-half instead 
of one-third was commonly claimed and secured as dower 
in the thirteenth century, not merely as a matter of custom, 
but almost as a rule of common law. Ultimately the uniform 
rule of a third in all cases became established, a half being 
allowed only where the custom to that effect was alleged and 
proved. 9 

During the thirteenth and early part of the fourteenth cen¬ 
turies, dower assigned by the husband or his father at the 
church door before marriage was used freely. Dower by 
law in one-third of all the land of which the husband was 
seised during the marriage gradually superseded the older 
form of dower created by voluntary act of the husband, so 
that, by Littleton’s time, the older dower was of comparatively 
small importance. 10 The new dower by law finally established 
the wife’s right on a certain and definite basis, removing the 
need which existed earlier for special provision by the husband 
on account of the uncertainty of the wife’s right, and eliminat¬ 
ing possible defeat of her dower by conveyance, collusive 
recovery, or other act of her husband. 11 Though in the twelfth 
century her right might be barred by her consent to a con¬ 
veyance of the land by her husband, without formality of 
any kind, and the tendency in Glanville’s time seems to have 
been to allow free alienation at the expense of dower, never- 

8 Bracton, f. 92, 93; Bractoris 9 Bracton, f. 93; Litt., § 27 - 
Note Book, pi. 970, 1531; Poll. & 10 Holdsworth, Hist. Eng. Law, 

Mait., Hist. Eng. Law, II, 419. Ill, 159. 

7 Nichols’ Britton, I, xii; II, 242. 11 Holdsworth, Hist. Eng. Law, 

8 Litt., §§39, 41. Ill, 160. 


FREEHOLD ESTATES 


123 


theless, in the thirteenth century, it became established that 
the husband could not alienate so as to defeat dower except 
by fine, the wife appearing and consenting on examination 
separate and apart from her husband. 12 By the time of Edward 

I, it was settled that she could not be deprived of her common 
law dower by agreement to accept dower in specific land 
assigned by the husband. 13 By statute in the reign of Edward 
VI, it was provided that dower be unaffected by forfeiture 
for felony of the husband or by escheat to the lord, though 
subject to defeat in case of forfeiture for treason. 14 

The barring of dower by jointures was the result of the 
development of uses as estates in equity and the converting 
of them into legal estates by the Statute of Uses, enacted in 
1535. Estates in equity, then known as uses but now known 
as trusts, had become so prevalent during the century or cen¬ 
tury and a half preceding the statute that most of the land 
of the kingdom was held in that way. Since courts of equity 
had arbitrarily refused to recognize dower as attaching to 
equitable estates, it followed that the wife or widow of the 
beneficial owner would not be provided for unless a voluntary 
provision was made by the husband. The practice had become 
general, therefore, for husbands to make marriage settlements 
on their wives at the time of the marriage usually in the form 
of a conveyance to husband and wife jointly. When the Stat¬ 
ute of Uses converted uses into legal estates, the immediate 
effect would have been the restoration of the wife’s common 
law dower right, in addition to the marriage settlement. To 
prevent this, the statute provided that, upon making such an 
estate in jointure before marriage, she should be forever barred 

12 Poll. & Mait., Hist. Eng. Law, (R.S.), 142; 2, 3 Edward II (S.S.), 

II, 421, 422. 56. Holdsworth, Hist. Eng. Law, 

13 She could elect after her hus- III, 162. 

band’s death between dower by law 14 1 Edward VI, ch. 12; 5, 6 Ed- 
and by her husband’s provision, and ward VI, ch. 11, cited in Holds- 
was forced to abide by her election worth, Hist. Eng. Law, III, 162. 
when made. Y.B., 20, 21 Edward I 


124 


HISTORY OF ENGLISH AND AMERICAN LAW 


of her dower, provided the estate in jointure would take effect 
immediately on the death of the husband, and was an estate 
for her own life at least, conveyed to herself, or to herself 
and husband jointly, and not in trust for her, and provided 
further that the conveyance was expressly in lieu of dower. 15 

Provisions in lieu of dower made for the benefit of the 
intended wife before marriage and accepted by her, but not 
coming within the terms of the statute, were nevertheless 
enforced in equity by way of specific performance of her con¬ 
tract. 18 The present law of equitable jointures and the modern 
statutes relating thereto are part of the modern law of prop¬ 
erty and are not within the scope of this work. 17 

The English Dower Act of 1834 18 puts dower entirely 
at the mercy of the husband. Under this statute no widow is 
entitled to dower in lands absolutely conveyed or devised by 
her husband, or in which he shall have devised any estate 
or interest for her benefit unless in the latter case a contrary 
intent is expressed in his will. All estates less than fee, all 
charges created thereon by the husband by deed or will, all 
debts, incumbrances, and contracts to which his land may be 
subject, are made superior to the dower right. He may also, 
by declaration to that effect by deed or will, deprive her of 
dower in whole or in part. This effectually removes inchoate 
dower as a restraint upon alienation. 

Inchoate dower still exists in the United States in most 
of the states as at common law, so that joinder of the wife 
in the husband’s deeds is still necessary in order to bar her 
dower. In some states, dower has been abolished and pro¬ 
vision made for the widow in the statute of descent. In a 
few states, dower attaches to such land only of which the 
husband dies seised. 19 

15 Bl., Comm., II, 137, 138; Holds- ^ See Walsh, Real Prop., 187-191. 

worth, Hist. Eng. Law, III, 164. ™ 3 and 4 William IV, ch. 105. 

18 Scribner, Dower, II, 208, et See Williams, Real Prop., 17th 

seq. Dyke v. Rendall, 2 DeG., M. ed., American notes, 377, 378. 

& S., 209, 218. 


FREEHOLD ESTATES 


125 


Dower in equitable estates was never recognized in equity, 
but the Dower Act in England, above referred to, gives the 
widow dower in those estates on the same terms as in corre¬ 
sponding legal estates; in other words, if the husband dies 
without having disposed of his equitable estate of inheritance 
either by deed or will, his wife will take dower therein. Stat¬ 
utes in the United States have established the same rule in 
most of the states, except that a disposition of the equitable 
estate by the husband’s will does not affect dower. Generally 
it is held that the husband must die seised of the equitable 
interest in order that dower shall attach, though in New Jersey, 
at least, dower attaches in such cases exactly as at law. 20 


§31. Estates by the Marital Right and Curtesy .—The 
right of the husband to the rents and profits of all his wife’s 
real property during the marriage, known to the modern law 
as the estate by the marital right, goes back in our records 
to the time of Glanville and Bracton, of Henry II and Henry 
III. The husband had an interest or estate in the land which 
continued during the joint lives of husband and wife, and 
which he could convey to third persons. On the birth of a 
child to the marriage, the husband’s interest was increased to 
an estate for his own life in all of his wife’s realty. This was 
called tenancy “by the law of England” and “by the curtesy 
of England.” In either case, during the wife’s life, husband 
and wife were seised “in right of the wife.” He was not 
seised of his own right until after his wife’s death. Therefore 
the husband could not sue an adverse holder for the recovery 
of the land without joining his wife as party plaintiff. 1 If 


20 See Walsh, Real Prop., 162- 
166; Young v. Young, 45 N. J. Eq. 
27. 

§31. 1 Poll. & Mait., Hist. Eng. 

Law, II, 405; Bracton, f. 429b. 
Nevertheless it seems settled by 
modern law that the adverse posses¬ 


sion of such a holder does not run 
against the wife during the hus¬ 
band’s life after the birth of issue 
because her husband has curtesy, an 
estate for his life, she having only 
a reversion in fee. Foster v. Mar¬ 
shall, 22 N. H. 481, and other cases 


126 


HISTORY OF ENGLISH AND AMERICAN LAW 


the husband excluded his wife from her property, his conduct 
was treated as a violation of his duty to his wife, who could 
get relief in the ecclesiastical court; and the sentence of that 
court, that he receive and treat her as his wife, would be 
enforced by the King’s Court. 2 

In the early law, the estate of the husband in both cases 
seems to have been regarded as in the nature of a guardian¬ 
ship of wife or children or both. Pollock and Maitland quote 
from early pleadings: “He died seised of that land not in 
fee but as of the wardship which he had for his whole life 
by reason that he had a son by his wife.” “He held that land 
with Isabel, his wife, whose inheritance it was, so that he 
has nothing in the land save a guardianship of the daughters 
and heirs of Isabel who are under age.” This idea of guardian¬ 
ship may help to explain the requirement of the birth of issue 
as a requisite of curtesy. But there is nothing in our records 
to indicate that the husband’s interest, whether before or after 
the birth of issue, could not be conveyed. Of course, if the 
husband attempted to convey in fee, which was the usual situa¬ 
tion arising in the cases, the widow on his death had a writ 
for the recovery of the land from his feoffee; but this does 
not indicate in any way that he could not convey the estate 
by the marital right or curtesy. 3 It seems clear enough that 
whatever was the extent of the notion of guardianship in 
these interests, he had an estate in the land which he could 
convey. We know of no practical effect of this notion of 
guardianship; and, in any case, the right of curtesy was in 
no way affected, though the child died at the time of its birth. 
Curtesy arose if a child capable of inheriting the lands was 
born alive and was heard to cry within the four walls; and 
its subsequent death, though it removed all question of 
guardianship, had no effect on the husband’s life estate. The 

cited in Walsh, Real Prop., 205, 3 Poll. & Mait., Hist. Eng. Law, 

note 3. II, 411, 407. 

2 Bracton, f. 166b. 


FREEHOLD ESTATES 


127 


records disclose nothing tangible which tends to explain the 
requirement of birth of issue as a requisite of curtesy. 4 

As to the origin of the term “curtesy,” it is contended by 
Digby and others that it has some connection with the word 
curia, referring possibly to attendance by the husband in the 
lord’s court as tenant of his wife’s land after birth of issue, 
or simply that the courts acknowledge him as tenant. 5 6 Pol¬ 
lock and Maitland made clear that the husband did homage 
and attended the lord’s court for his wife both before and 
after the birth of issue. They interpret the phrase “curtesy 
of England” as meaning simply the liberality of English law 
in giving the husband an estate for his own life as against the 
heirs of the wife and the lord’s wardship, and even though 
the husband marry again.® The question is of no practical 
historical importance. 

Though at first there seemed to be doubt as to whether 
curtesy should attach to equitable estates of a married woman, 7 
no real controversy appears ever to have developed on this 
point, and curtesy has been fully recognized as attaching to 
■estates in equity as to estates at law. 8 Of course, if the trust 
by express terms excludes curtesy, equity will not enforce it 
contrary to the terms of the trust. If the trust is for the sole 
use and benefit of the wife during her life, with no express 


4 See Poll. & Mait., Hist. Eng. 
Law, II, 405 , 4I5-4I7- 

B Digby, Hist. Law Real Prop., 
174. 

6 Poll. & Mait., Hist. Eng. Law, 
II, 412-415. 

The gavelkind custom of Kent, 
which undoubtedly goes back to 
Saxon times, gave to surviving hus¬ 
band or wife until remarriage one- 
half the land of the other. This 

right was called “free bench.” 
Birth of issue was not a requisite. 
How far this custom prevailed in 


Saxon times is a matter of mere 
conjecture. We know dower in 
some form was common, yet it 
could hardly have existed at the 
same time with this right of free 
bench. This right would seem to 
throw little or no light on curtesy. 
See Poll. & Mait., Hist. Eng. Law, 
II, 416, 417. 

7 Doctor and Student, II, 22. 

8 Casborne v. Scarfe, 1 Atk. 603; 
Lewin, Trusts (8th ed.), 723, 733; 
Williams, Real Prop. (17th ed.), 
359 - 


128 


HISTORY OF ENGLISH AND AMERICAN LAW 


provision either way as to the husband’s curtesy on her death, 
he is not entitled to the income or enjoyment thereof during 
her life, but will be entitled to curtesy therein on her death, 
it not having- been expressly excluded. 9 

The effect of the Married Women’s Property Act, effective 
in England after January i, 1883, is to give to a married 
woman the rights of a single woman in the enjoyment and 
disposition of her property. She may now convey and devise 
it free of curtesy, which does not exist until her death, and 
then only as to property which she has not conveyed or devised 
by her will. 10 In New York, a like statute has been in effect, 
with like result, since 1849. Many other states have followed 
New York; and, in all the states, the husband’s control over 
his wife’s property during her life has been entirely or almost 
entirely removed. Details of these changes belong to treatises 
on the modern law of property. 

9 Williams, Real Prop., 359; 10 Stat., 45, 46, Victoria, ch. 75. 
Cushing v. Blake, 30 N. J. Eq. 689. 


CHAPTER VI 


ESTATES LESS THAN FREEHOLD. — LANDLORD 
AND TENANT 

§32. Tenancies for Years. — The laenland of the Saxon 
period was possibly the earliest form in English law of the 
relationship of landlord and tenant. 1 The holder of laenland 
had a mere usufruct, a right to enjoy another’s land, but with 
no estate in himself. Tenancies for years do not seem to 
have been at all common — at least the records contain very 
little with reference to them — down to the latter part of 
the twelfth century; and we know very little of the customary 
law which governed them. 2 Toward the end of the twelfth 
century, they became more usual. The tenant’s interest was 
generally, if not always, created by a covenant executed by 
his landlord; and the writ of covenant, which the tenant could 
employ against his landlord who had ousted him, seems to 
have been used principally for the enforcement of leases. Prob¬ 
ably this remedy extended back through the first century of 
the Norman period to Saxon times, but we know little of 
this. At any rate, the tenant had no remedy by which he could 
protect his possession against third persons. The action of 
covenant against the landlord was personal. Through it, the 
tenant recovered the land, not as belonging to him, but by 
specific enforcement of the covenant. Warranty seems to 
have been implied from the lease, so that, if the tenant was 
ousted by a third person, he could recover from his landlord 
an equivalent in value. 3 He also had the right to resist force- 

§32. 1 See §5, notes 19-22. to flow as a natural consequence 

2 Poll. & Mait., Hist. Eng. Law, from the original character of such 

II, no, in. a demise. The lessor gives the 

3 Bracton’s Note Book, pi. 106, lessee no right in the land, but cove- 
638. “The doctrine that a demise nants that the lessee shall enjoy the 
for years implies a warranty seems land; this covenant he must fulfill 


130 


HISTORY OF ENGLISH AND AMERICAN LAW 


fully a forceful ousting by his landlord. But, having no estate 
in the land, he had no remedy by which he could recover it 
from third persons who had ousted him. His landlord could 
in such case maintain a novel disseisin against the stranger, 
and thus restore the land to his tenant; but the tenant could 
do nothing except to hold his landlord for an equivalent under 
his warranty. If his landlord conveyed the land to another, 
the new owner was not bound by the covenant and could oust 
the tenant with impunity, and the tenant’s only remedy would 
be his action based on the warranty against his landlord; he 
could not maintain covenant against the landlord because the 
landlord had not ousted him. 

A new writ was created for the tenant about 1235, known 
as the quare ejecit infra terminum. Bracton regarded this 
writ as giving broadly to the tenant the right to recover the 
land from any third person wrongfully ejecting him from 
the land. 4 But the new writ was used specifically against 
feoffees of the landlord who might eject the tenant; and it 
came to be limited to this one case, leaving the tenant as badly 
off as ever against other wrongful ejectors. 5 This situation, 
however, was met by allowing tenants to maintain the action 
of trespass quare clausum fregit, a new action which was 
coming into general use during the latter part of the reign 
of Henry III, in which they could recover damages against 
all persons unlawfully entering and disturbing them, and later 
by giving them a special writ of trespass de ejectione Urmae, 
intended for tenants alone, by which action, as it eventually 
developed, they could recover possession of the land as well 
as damages. 6 


in specie, if that be possible: other¬ 
wise he must render an equivalent.” 
Poll. & Mait., Hist. Eng. Law, II, 
106, note 3. 

4 Bracton, f. 220. 

5 Poll. & Mait., Hist. Eng. Law, 
II, 107, 108. 


6 Poll. & Mait., Hist. Eng. Law, 
II, 108, 109. Sedgwick and Wait 
say that the writ of ejectione firmae 
first appeared during the reign of 
Edward II or early in the reign of 
Edward III. As pointed out by 
Pollock and Maitland, it is probable 


LANDLORD AND TENANT 


131 

In this way, tenancies for years had developed from mere 
personal choses in action arising out of covenants to actual 
estates in the land protected by the law at nearly all points 
against interference, either by the landlord or any other person. 
Tenants had acquired ownership of the land, limited in dura¬ 
tion to the length of the term, but as complete as the owner¬ 
ship of a tenant for life or a tenant in fee in all other respects. 
Like tenants for life, their ownership was limited by the law 
of waste; but, subject to that limitation, they had absolute 
dominion, control, and enjoyment over their land during the 
term . 7 

Why did the courts decide that these new estates of tenants 
for years should be regarded as personal interests in land 
to which they applied the term “chattels real”? The most 
obvious explanation, and probably the correct one, is that 
given by Digby, that, prior to the development of the writ 
quare ejecit infra terminum and the subsequent ejectio Hrrnae 
above described, the tenant’s right was a mere personal chose 
in action in covenant against the landlord which descended 


that trespass was used by tenants 
to recover damages from the time 
writs of trespass became common, 
since the complainant did not de¬ 
scribe his title, alleging merely that 
the defendant had entered “his” 
close, The writ as used by tenants 
for years seems to have been lim¬ 
ited to the recovery of damages for 
a long time. In 1383, the right of 
the tenant to recover the land was 
apparently asserted, but denied by 
the full court. This seems to have 
been still the law in 1455. In 1465, 
counsel agreed that the term could 
be recovered, besides damages. The 
first case so deciding was in 1499, 
according to Sedgwick and Wait, 
Ejectment, §§24, 25 and notes. 

7 The tenant’s interest could still 


be destroyed by a collusive action, 
a writ of right, brought against his 
landlord which he would let go 
against him by default. As the ten¬ 
ant had no standing in such an 
action under the old law, he had 
no protection against a recovery 
suffered in this way. The Statute 
of Gloucester, ch. 11, enacted in 
1278, during the reign of Edward I, 
gave the tenant the right to inter¬ 
vene in such cases to protect his 
interest. This did not protect him 
fully, and another statute, 21 Henry 
VIII, ch. 15, was required to make 
his protection complete. Thereafter 
the tenant’s interest was fully pro¬ 
tected at all points. See Poll. & 
Mait., Hist. Eng. Law, II, 109. 


132 


HISTORY OF ENGLISH AND AMERICAN LAW 


on his death to his personal representative as personalty. It 
was natural still to regard it as personalty after the develop¬ 
ment of the writs above referred to, though the tenant’s 
interest had become ownership of the land good against all 
the world. 8 When the assize of novel disseisin came into use 
in Henry II’s reign, tenancies for years were not numerous, 
and apparently they had for a long time been treated as creat¬ 
ing a mere usufructuary right arising out of the personal 
agreement of the landlord, rather than estates in the land. 
The law had not as yet reached a point where the possession, 
or seisin, as it was then termed, of the tenant could be pro¬ 
tected as against others than the landlord; and, as the tenant’s 
remedy in covenant protected him against ejectment by the 
landlord, it was natural that the assize of novel disseisin could 
not be used by mere tenants for years. A half century later, 
when the writ quare ejecit gave the tenant an estate good 
against others, and still later the writ of trespass and its off¬ 
shoot, ejectio drmae, gave the tenant ownership as against all 
men, the rule had become established that only the freeholder 
could maintain a novel disseisin; the tenant for years had to 
rely on the new writs to recover his possession. 

The practical considerations which led the courts to treat 
terms for years as chattel interests after they had ceased to be 
such in fact and had become estates in land, is largely matter 
of conjecture. We can hardly say that it was merely a blind 
mistake in failing to recognize the change which had taken 
place. The explanations usually given in the books, that 
tenancies for years were the inferior holdings of mere 


8 Digby, Hist. Law Real Prop. 
(5th ed.), 177. That the term 
passed as personal property to the 
executor if the tenant made a will 
disposing of it is undoubted; and 
this was the usual case, as intestacy 
was very unusual in the thirteenth 
century. But the law of intestate 


succession had not developed at the 
time referred to by Digby, and 
therefore it is a mistake to assume 
that the term passed to a personal 
representative in case of intestacy 
at that time. See §89, post, as to 
intestacy. 


LANDLORD AND TENANT 


133 


farmers, men who tilled the soil, and could not be admitted 
in the same class with the more honorable holdings of free¬ 
hold tenants; that they were not feudal, and therefore could 
not be treated as freeholds, are thoroughly exploded by Pollock 
and Maitland. 9 The great majority of the early leases were 
in the nature of investments, interests in the land for a term 
of years purchased for a price paid down with no reservation of 
periodical rent, the tenant getting his profit on his investment 
out of the profits derived from the land over and above the 
price paid for the term. The lease of the mere farmer or 
husbandman became common at a mucji later time compara¬ 
tively. Instead of the tenant’s interest being of an inferior 
character, of such slight importance that it could not be dig¬ 
nified by treating it as real property, these interests were 
commonly of great value, investments which must have been 
regarded as much more valuable than many freeholds for life 
or even in fee, subject to the burdens of feudal tenure. 10 In 
the early days, before the new writs protecting tenants were 
evolved, the tenant was said to be “seised.” There was no 
other word to describe his possession which he recovered from 
his landlord in the action of covenant. 11 None of the terms 
used by the courts thereafter indicated any such distinction 
based on the absence of the feudal relation. The tenant for 
years held a “tenement” like the freeholder. Those paying 
anything approaching the full rental value of the land, 
whether freeholders or tenants for years, were called farmers, 
firmarii. 12 After the tenant’s estate in the land had come to 
be recognized and protected, the courts found it necessary to 
distinguish between the seisin of the landlord as freeholder 
and the seisin of the tenant as possessor. The word “posses¬ 
sion” came into use solely for this purpose. The tenant for 
years with a chattel interest only, had possession; his land- 

9 Poll. & Mait., Hist. Eng. Law, 11 Id., 106. 

II, 110-115. 12 Id., 113, 114. 

10 Id., hi, 112. 


134 


HISTORY OF ENGLISH AND AMERICAN LAW 


lord as freeholder was seised through the possession of his 
tenant. Of course the word “possession” quickly acquired 
its modern significance, seisin being restricted to the possession 
by a freeholder either in person or through his tenant for 
years. 13 

The practical reason which actuated the courts in this matter 
may well have been the desire to treat these early investment 
leases as in the nature of other investments personal in their 
nature which could be disposed of without the formalities of 
the feudal law, and which could be bequeathed as personal 
property by will. Chattels real included the lord’s rights of 
wardship and marriage, which could be sold freely as personal 
rights in land, and which were very frequently purchased as 
investments. They also could be bequeathed by will as per¬ 
sonal property. Large sums of money were invested in leases 
for years as well as in wardships and marriages at the time 
this law was forming, and it may very well be, as Pollock 
and Maitland suggest, that they were called and dealt with 
as chattels by the courts because they were so frequently of 
the nature of invested capital. 14 


§33. Development of Ejectment from the Writ of Ejectio 
Firmae .—The modern action of ejectment by which all own¬ 
ers of land, whether tenants for years, for life, or in fee, re¬ 
cover possession of land from disseisors or others wrongfully 
withholding possession, may best be considered in its historical 


13 Referring to the doctrine that 
the tenant was not seised, that his 
possession was the seisin of the 
landlord who alone could maintain 
a novel disseisin, Pollock & Mait¬ 
land say, (I, 339) : “Such was the 
doctrine of the twelfth century; 
but already before the middle of 
the thirteenth the lawyers had dis¬ 
covered that they had made a mis¬ 
take, that the ‘termor’ or tenant for 


years deserved possessory protec¬ 
tion, and they invented a new ac¬ 
tion for him. The action, however, 
was a new one and did not inter¬ 
fere with the older actions which 
protected the seisin of free tene¬ 
ment; it was too late to say that 
the termor had a free tenement or 
was a freeholder.” 

14 Poll. & Mait., Hist. Eng. Law, 
II, 115, 116. 


LANDLORD AND TENANT 


135 


development at this point, because it developed from the special 
writ in trespass, ejectio Hrrnae, by which tenants for years 
could recover possession from any wrongful possessor, and 
because it took the place altogether of the assizes and posses¬ 
sory writs of the freeholder which we have discussed in the 
preceding chapter. 1 

The detailed development of writs for the recovery of land 
during the fourteenth and fifteenth centuries is not within the 
scope of this work, as a knowledge thereof is not essential to 
an understanding of the modern action of ejectment which 
took their place. It is enough to understand that they steadily 
grew in number, technicality, and difficulty of application. It 
was essential to success that the plaintiff use the right writ in 
prosecuting an action for the recovery of his land, and he was 
called on to select from a great number differing from one 
another only in slight detail, in many cases almost impercepti¬ 
ble. Pleading under these writs was extremely technical, the 
slightest variance between writ and pleading, and between 
pleading and proof, being fatal to the plaintiff’s action. 2 They 
lost their early summary character; and, by various devices, 
the actual determination of the case could be put off for years, 
a delay resulting in frequent miscarriage of justice. Parlia¬ 
ment did nothing to relieve the situation; and the development 
of the action of ejectment to take the place of real actions was 
the result of the efforts of courts and lawyers to escape from 
the evils which had grown up about them. 3 


§33. 1 See §26, ante. 

2 Sedgwick & Wait, Ejectment, 
§§2, 3. Sir Matthew Hale said, with 
reference to pleading in the fif¬ 
teenth century: “The pleaders, yea, 
and the judges too, became some¬ 
what too curious therein, so that 
the art or dexterity of pleading, 
which, in its use, nature and design, 
was only to render the fact plain 


and intelligible, and to bring the 
matter to judgment with a con¬ 
venient certainty, began to degen¬ 
erate from its primitive simplicity, 
and the true use and end thereof, 
and to become a piece of nicety and 
curiosity.” Hale, Com. Law (ed. 
1794), 301. 

3 Sedgwick & Wait, Ejectment. 

§§6, 7, 8. 


136 HISTORY OF ENGLISH AND AMERICAN LAW 


We have just seen how tenants for years were given new 
actions in personam , by which they could recover their land 
and damages by the writ qnare ejecit infra terminum against 
ejectors who had purchased the freehold from the landlord, 
and by the writ ejectione firmae against all other ejectors not 
claiming through the landlord. 4 Apparently the tenant’s right 
to recover the land in addition to damages under the latter 
writ was not fully recognized until close to the end of the 
fifteenth century. 5 He was protected against his landlord by 
his action of covenant, and against his landlord’s feoffees by 
the writ quare ejecit infra terminum; but against other ejec¬ 
tors, during this interval of over two hundred years, he could 
recover damages only in trespass, though there was a remedy 
not clearly defined in the records, which tenants sought in 
equity during this time, by which they secured injunctions 
perpetually quieting their possessions as against strangers dis¬ 
turbing them. 6 By the end of the fifteenth century the right 
of the tenant for years to recover his possession under the 
writ ejectio firmae was fully established. This writ was mere¬ 
ly a form of the writ of trespass specially drawn for tenants 
for years. The action of ejectment as it was first used, was 
merely an ejectio firmae brought by a tenant to whom the real 
plaintiff in interest seeking to recover the property had leased 
it after making a formal entry for that purpose. This tenant 
would retain possession until ousted by the tenant in possession 
against whom the ejectment would be brought. 7 Not long 
after the establishment of the rule that a tenant for years 
could recover his possession by this simple personal action in 
the nature of trespass, free from the technicalities of real 
actions above described, this device of making a formal entry 
and executing a lease to a tenant, so that the tenant could sue 

4 See §32, ante. 8 Gilbert on Ejectment, 3, 4. 

5 Holdsworth, Hist. Eng. Law, 1 Bl., Comm., Ill, 201. 

Ill, 183; Sedgwick & Wait, Eject¬ 
ment, §§24, 23. 


LANDLORD AND TENANT 


137 


in ejectment after being ousted by the claimant in possession, 
came into general use in nearly all cases of disputed title. 
Ejectment gained rapidly on real actions during the reign of 
Henry VIII, and, by Elizabeth’s time, had almost entirely 
taken their place. 8 A single comparatively simple writ about 
which there could be no mistake in its selection took the place 
of the great mass of real writs from which the proper one had 
to be selected before that time with so much care and danger 
of mistake. Instead of the extreme technicality of pleading 
and proving the plaintiff’s title without variance and in precise 
conformity with the requirements of the writ selected, with all 
the dangers of fatal error, the plaintiff in ejectment was re¬ 
quired to allege no title other than the lease made for the 
purpose of the action, and the right of his lessor to make it, 
and the whole matter of right to possession of the property 
was tried and determined in a simple personal action in the 
nature of trespass. 9 

Formal entry by the lessor, who was, of course, the real 
party in interest, had to be established; otherwise he would 
have been guilty of the crime of maintenance, viz., the transfer 
of an interest in land by one out of possession. 9 The title, 
viz., the superior right of possession, of the lessor was directly 
involved, since the plaintiff tenant had to establish the right 
of his lessor to make the lease. The actual ouster of the 
plaintiff tenant was not necessary; he would be regarded as 
ousted by the defendant in possession if he remained on the 
land after the tenant of the plaintiff had taken possession under 
the lease. 10 

The weak point in the early action of ejectment was the 
holding by the courts that any person might be the ejector so 
that an action could be brought against him resulting in a 

8 Sedgwick & Wait, Ejectment, 10 Sedgwick & Wait, Ejectment, 
§26. §29. 

•Gilbert, Ejectment, 7; Bl., 

Comm., Ill, 201. 


138 HISTORY OF ENGLISH AND AMERICAN LAW 


judgment awarding the possession to the plaintiff, though the 
defendant possessor had no notice of the action. This casual 
ejector, as he was termed, often friendly to the plaintiff, would 
let judgment go against him by default as he would generally 
have 1 no interest in the property. We find, therefore, the 
amazing fact that at one time the courts awarded possession 
to a plaintiff in a suit brought against a stranger to the 
property without notice to the possessor and presumptive 
owner. 11 To remove the obvious injustice of this situation, 
the rule was established that, where a casual ejector was the 
defendant, notice had to be given to the tenant in possession, 
and judgment could not be secured without proof that this 
notice had been duly served. The tenant in possession was 
always admitted to defend the suit as the real party in 
interest. 12 

§34. Ejectment.—Its Later Development .—The real pur¬ 
pose of ejectment was to try one question, viz., title. As 
matters stood, the plaintiff had to establish, not only the 
superior title of his lessor, but also the making of the lease, 
entry thereunder, and the ejectment by the defendant. To 
limit the action to a determination of the one question of 
title, Lord Chief Justice Rolle, of the Upper Bench during 
the Protectorate, introduced the device of requiring the pos¬ 
sessor tenant, as a condition of permitting him to intervene 
and defend the action, regarded as a matter of grace rather 
than of right, to enter into the consent rule, so called, by 
which he agreed to admit at the trial the lease, entry, and 
ouster, leaving the question of title the one matter to be 
litigated. 1 

The next step was the use of fictitious persons as the tenant 

11 Bl., Comm., Ill, 201; Sedgwick §34. * Sedgwick & Wait, Eject- 

Si Wait, Ejectment, §30. ment, §§35, 36. It seems to have 

12 Sedgwick & Wait, Ejectment, been first used about 1625. See 

§3 2 - Styles, Refs., 368. 


LANDLORD AND TENANT 


139 


plaintiff and defendant casual ejector. Thereafter the real 
plaintiff seeking to recover land from the real defendant in 
possession, delivered to the defendant a declaration in eject¬ 
ment in which John Doe sued Richard Roe, alleging that Doe 
held under a lease, (of course fictitious) from the real plain¬ 
tiff and that during his term he had been evicted by Roe, the 
action being entitled “John Doe on the demise of (real plain¬ 
tiff’s name) vs. Richard Roe.” A notice signed by Roe was 
attached to the declaration informing the real defendant pos¬ 
sessor that Roe had been sued as a casual ejector and advising 
him to appear and defend, as Roe would let judgment be 
taken by default and the defendant possessor would be ousted 
from the property. 2 Of course, on the real defendant’s ap¬ 
pearing, entering into the consent rule, and pleading the 
general issue, the question of title would be tried and deter¬ 
mined, no other question being involved. But, if the real de¬ 
fendant failed to appear, judgment was entered by default 
against the casual ejector. If the real defendant appeared 
and entered into the consent rule, but defaulted on the trial, 
the plaintiff was non-suited, since naturally he could not prove 
the fictitious lease, entry, and ouster, in the absence of the 
expected confession thereof by the defendant possessor. In 
that case, he got judgment against the casual ejector in ac¬ 
cordance with the provisions of the consent rule. But the 
defendant’s default would be opened up, in the first case, ad¬ 
mitting him to defend under the consent rule, in the latter 
case, allowing him to contest the issues in a trial, even after 
several terms had passed, if he applied therefor without delay 
on actually learning of the action. On recovery of judgment 
by default or after trial, the plaintiff was put in possession by 
virtue of a writ Labere facias possessionem issued to the 
sheriff. 3 

2 Sedgwick & Wait, Ejectment, 8 Sedgwick & Wait, Ejectment, 
§37; Bl., Comm., Ill, 203. §§38, 39, 40* 


140 


HISTORY OF ENGLISH AND AMERICAN LAW 


The question of title litigated was merely the question of 
better title as between the plaintiff and defendant; in other 
words, which one had the superior right of possession. The 
plaintiff in ejectment established his case by proving a right 
of possession superior to that of the defendant. There might 
be a better title in some third person. The defendant could 
not set it up. The plaintiff may have been an absolute wrong¬ 
doer, without a trace of real right to the property as against 
the real owner; but, if he proved that he had possession and 
was wrongfully ousted by the defendant or his predecessor in 
interest, he recovered. The possession was still fully pro¬ 
tected as under the assize of novel disseisin and the writs of 
entry which ejectment displaced, the one important difference 
in that respect being that the real owner might set up his 
title as a defense to ejectment even though he got possession 
forcefully by self-help without resorting to an action at law. 4 

It is clear, therefore, that a judgment in ejectment has 
never been a bar to an action in ejectment by any third person 
having a title superior to that of the successful party in the 
first suit. Furthermore, it has not been conclusive as between 
the parties themselves. By setting up a new fictitious entry, 
lease, and ouster, the defeated party could have the same issue 
of right to possession litigated time after time without limit 
at law. The reason usually given for this is that the judg¬ 
ment settled the right of possession of the fictitious tenant, 
the right of the lessor of the fictitious lease being involved 
indirectly and only for the purpose of establishing the fictitious 
tenant’s right of possession. The new fictitious tenants in 
the repeated actions would not be bound by judgments rend¬ 
ered against or in favor of the other fictitious tenants in the 
prior suits. In the Supreme Court of the United States, 
it has been decided that where the parties appeared in the 

4 Read & Morpeth v. Erington, Saund., R. in; Hughes v. Dyball, 
Cro. Eliz. 321; Bateman v. Allen, 14 Eng. C. L. R. 481; Sowden v. 
Ibid., 437; Allen v. Rivington, 2 McMillan’s Heirs, 4 Dana 456. 


LANDLORD AND TENANT 


141 

action without the fictitious lease, entry, and ouster, and with¬ 
out the fictitious tenant and casual ejector, the judgment was 
conclusive, establishing beyond question that the judgment in 
ejectment at common law was not binding between the real 
parties because in mere form the action was between the 
fictitious parties, who would be different in every case. 5 It 
is doubtful if anything more silly can be found anywhere in 
any system of law. The whole process sounds like a nursery 
game of make-believe indulged in by children. It was a 
long way from the early vigor of the courts in determining 
the law as exercised by the king’s judges during the reigns 
of Henry II and Henry III. Mere form of procedure had 
swallowed up substance. The technicalities which finally 
made real actions practically unworkable had been created by 
the courts themselves. The evil was accomplished by prece¬ 
dent without the aid of statute. It follows that the courts 
had the power to remedy the evils without statutory help if 
they had only recognized the power which they always had 
and consciously or unconsciously have always exercised in 
the development of the common law from the beginning to 
the present time. The difficulty was they regarded them¬ 
selves as so bound by precedent, in matters of mere form as 
well as of substance, that they felt they could do nothing to 
remove the evils that they had created, by open, direct change. 
They proceeded to make the change, nevertheless; but did it by 
using the absurd game of make-believe just described. The 
crowning absurdity was in refusing to recognize that these 
fictions were mere fictions, and in consequently holding that 
the real parties in interest were not bound by the result 
reached as to their right to possession of the property involved. 6 

After the successful party in ejectment had repeatedly estab¬ 
lished his right in repeated ejectment suits between the same 
parties, equity would enjoin the unsuccessful party from bring- 

5 Sturdy v. Jackaway, 4 Wallace 8 Sedgwick & Wait, Ejectment , 
174- §42. 


142 


HISTORY OF ENGLISH AND AMERICAN LAW 


ing further suits, thus ending the farce. Nevertheless, even 
courts of equity seem to have been so affected by the fictions 
as to hesitate to grant injunctions in these cases. 7 

It would be unprofitable to trace further the various rules, 
fictions, and extensions of fictions, by which the courts pre¬ 
vented technical objections to the fictitious lease, entry, and 
ouster from defeating the action. These fictions have now 
been abolished by statute, and the action is now a straight¬ 
forward action to determine the right to possession as between 
the parties. Statutes in the different states generally permit 
a second action as a matter of course between the same parties, 
and in some states a third action at the discretion of the court 
for cause shown. This is peculiar to ejectment, existing no¬ 
where else in the law, and is undoubtedly due to the way in 
which ejectment has developed, allowing repeated suits as 
above explained, though all reason therefor disappeared with 
the abolishment of fictions in these actions. 8 


§33- Tenancies of Indefinite Duration .—Tenancies less 
than freehold which are to continue for no definite period in¬ 
clude tenancies at will, periodic tenancies from year to year, 
from month to month, etc., and tenancies at sufferance. Brac- 
ton refers to tenancies at will and from year to year, as follows: 
“Further one may give to another land to hold at will, or as 
long as he pleases, from term to term, or from year to year, 
in which case the donee has no freehold, for the lord of the 
fee may reclaim land thus granted as from one holding by 
mere grace and favor.” 1 Tenancies at will are no doubt as 
old as the relation of landlord and tenant. At common law, 
this tenancy has always been subject to termination by either 


7 Earl of Bath v. Sherwin, 4 Pro. 
P- C. 373. See Sedgwick & Wait, 
Ejectment, §46. 

8 Sedgwick & Wait, Ejectment, 
§ 44 , § 55 , also ch. 22. 


§35. 1 Bracton, Bk. II, ch. 20, 

f. 27. There was no suggestion at 
this early date of any notice re¬ 
quired to terminate a tenancy from 
period to period. 


LANDLORD AND TENANT 


143 


party at any time without notice to the other. It has always 
depended upon the mutual concurrence of the wills of landlord 
and tenant, and any act or occurrence inconsistent with this 
accord terminates the estate. The death of either party, 2 or 
a conveyance or lease for years by the landlord, or an attempted 
assignment by the tenant brings the tenancy to an immediate 
end. 3 A new party as the successor of either of the original 
parties cannot be introduced without creating a new tenancy 
at will. Any act of ownership by the landlord, as entering 
and cutting timber on the premises, or act by the tenant incon¬ 
sistent with his tenancy, as committing waste, also terminates 
the tenancy automatically. 4 5 * * As in other cases of tenancies of 
uncertain duration, a tenant at will has a reasonable time to 
remove his personal effects, including removable fixtures, after 
his tenancy is ended. 8 

Tenancies from year to year, from month to month, etc., 
are offshoots of tenancies at will, arising in cases of leases for 
no definite period where rent is reserved by the year, month, 
quarter, week, etc. Their existence at the time of Bracton 
has already been referred to in the preceding paragraph; but, 
like tenancies at will, they could be reclaimed by the lord 
at any time as being held “by mere grace and favor.” By the 
time of Henry VIII, tenancies from year to year had developed 
into estates requiring six months’ notice from one party to 
the other to bring them to an end. 8 Where the period of 


2 Co. Litt., 57, 62. 

3 1 Rolle, Abr., 860; 2 Lev. 88. 

4 Co. Litt., 55. 

5 Litt., §69. Littleton’s treatise on 

tenures was published in the latter 

half of the fifteenth century. This 
was the first treatise on the law of 

real property, and is the foundation 
on which Blackstone and subse¬ 
quent treatises are based. The de¬ 
velopments of the law of property 


during the two centuries following 
Bracton’s time are in the main ac¬ 
curately summed up in Littleton’s 
work. 

8 “This kind of lease was in use 
as long ago as tbe reign of Henry 
VIII.” Bl. Comm., II, 147 note, 
citing Y.B. 13 Henry VIII, 15, 16. 
That six months' notice was re¬ 
quired to terminate a tenancy from 
year to year as early as the time 


144 


HISTORY OF ENGLISH AND AMERICAN LAW 


holding was by the quarter, month, or week, the customary 
notice seems to have been for the full period of a quarter, 
month, or week respectively, as the case might be. The law 
is now settled, apart from statutory changes in different juris¬ 
dictions, that six months’ notice must be given by landlord to 
tenant or tenant to landlord to terminate a tenancy from year 
to year; a quarter, a month, or a week’s notice respectively to 
terminate tenancies from quarter to quarter, month to month, 
or week to week; custom having gradually hardened into rules 
of law. 7 The notice must be given to quit at the end of one of 
the periods, a notice to quit on any day during the period 
being void. Statutory changes and details in the application 
of these rules belong to treatises on the modern law of 
property. 

A tenancy by sufferance, so called, arises where a tenant for 
years, from year to year, etc., or at will holds over after his 
term has expired or after his right to possession has ceased to 
exist through the ending of this tenancy by notice or other¬ 
wise. He was not a disseisor, and therefore could not be. 
ousted by a novel disseisin. A new writ, a writ of entry, was 
required so that the landlord could recover possession. 8 He 
has no estate, and may be held liable in an action for mesne 
profits at the election of the landlord like any disseisor. He is 
technically not a trespasser, so that the landlord must enter or 
recover his possession by action before maintaining the action 
for mesne profits. Any recognition of him as tenant will 
make him tenant at will at least, and acceptance of rent on 
the old basis by the landlord makes him a tenant from year 
to year, from month to month, etc., depending on whether 

of Henry VIII was stated by Lord Esp. 4; Doe d. Campbell v. Scott, 
Ellenborough in Doe d. Strickland 6 Bing. 362; Steffins v. Earl, 40 
v. Spence, 6 East 120. N. J. L. 128. 

7 Doe ex dem. Parry v. Hazell, 8 See §26, (d). Writs of Entry, 
1 Esp. 94; Peacock v. Ruffun, 6 ante. 


LANDLORD AND TENANT 


145 


rent was reserved under the old lease by the year, month, or 
week. 9 

§36. (a) Form of Lease; ( b ) Assignments; (c) Cove¬ 

nants; (d) Surrenders. —(a) Leases for years were in sub¬ 
stantially the same form as conveyances of freehold estates, 
words of letting, “demise, grant and to farm let” being used 
instead of the phrase “give and grant” of the deed of feoff¬ 
ment. This is further proof of the extreme technicality of 
the rule making tenancies for years mere chattel interests in 
land. 1 Like deeds prior to the Statute of Uses, leases were 
not effective to transfer or create the estate until entry had 
been made. The tenant acquired a right to the land before 
entry called the interesse termini, a right to enter. 2 As we 
shall see later, a lease by bargain and sale under the Statute 
of Uses operated to create and transfer the term without entry 
by the tenant. 3 Though a writing was not necessary in creat¬ 
ing leasehold estates prior to the Statute of Frauds, as a prac¬ 
tical matter writings in the form of covenants under seal 
were for a long time required if the tenant was to secure 
anything which the law would protect, because his only remedy 
against the landlord was in covenant before the development 
of the writs later invented for his protection. 4 The Statute 
of Frauds, 29 Charles II, ch. 3, required that all leases for 
over three years and fulfilling certain conditions as to rent, be 
in writing; otherwise, they should operate as tenancies at 
will only. The law is well settled that where the tenant enters 
and pays rent by the year or month under a parol lease void 
because not in writing under the statute, he holds as a tenant 
from year to year or from month to month, depending on 

9 Co. Lift., 57b; Digby, Hist. Law 2 Holdsworth, id., Ill, 215; Digby, 
Real Prop. (5th ed.), 245. id., 242. 

§36. 1 Holdsworth, Hist. Eng. 8 See §53, post. 

Law, III, 214; Digby, Hist. Law 4 See §32, ante. 

Real Prop. (5th ed.), 242. 


146 HISTORY OF ENGLISH AND AMERICAN LAW 


whether the rent under the void parol lease was reserved by 
the year or by the month. 5 6 In the United States, many states 
have statutes making void all parol leases for over a year, 
while others have followed the English statute, some requiring 
that all leases for a fixed term shall be in writing. 8 

(b) Assignments , viz., transfers by tenants for years of the 
entire term, and subleases, or the subletting of the land or part 
thereof for part of the term leaving a reversion in the tenant, 
go back to the early days when the tenant’s interest was devel¬ 
oping from a mere personal right in covenant to an estate in 
land. 7 Before the Statute of Frauds, parol assignment fol¬ 
lowed by entry without writing was all that was required. 
The Statute of Frauds requires that all assignments of lease¬ 
hold interests be in writing, or by act and operation of law. 8 
Massachusetts, New Jersey, and several other states have 
substantially the same statute. In New York and many other 
states, assignments of leases for over a year must be in written 
form. 9 Though, under the old law, transfer of possession was 
necessary to a complete assignment which would make the 
assignee liable upon the covenants of the lease, the modern 
rule, in accord with the modern law of deeds, is that the 
delivery of a written assignment sufficient to satisfy the Stat¬ 
ute of Frauds is a complete transfer of the tenant’s estate 
before entry by the assignee. 10 


5 Clayton v. Blakey, 8 Durn. & 
East 3; Doe dem. Tilt v. Stratton, 
4 Bing. 446. As to the controversy 
in New York on this point see 
Walsh, Real Prop., 258, and cases 
cited. 

6 See Walsh, Real Prop., 244, 245. 

7 Bracton, 11b, 326a; Co. Lift., 
46b; Bacon, Abr., Leases (I, 3). 

8 29 Charles II, ch. 3, §3. The 

Statute 8, 9 Viet., ch. 106, §3, now 

requires that all assignments be by 
deed. 


9 Tiffany, Land & Ten., 953, note. 

10 Collins v. Pratt, 181 Mass. 345, 
distinguishing Sanders v. Partridge, 
108 Mass. 556, (which last case con¬ 
tains a statement of the old rule at 
common law) ; Benedict v. Everard, 
73 Conn. 157; Fennell v. Guffey, 
155 Pa. St. 38; Tate v. McCormick, 
23 Hun (N. Y.) 208. As to devel¬ 
opment of the law of the assignee’s 
liability on covenants in the lease, 
see Covenants Running with the 
Land, §76, post. 


LANDLORD AND TENANT 


147 


( c ) Covenants in leases are either express or implied. The 
usual express covenants include covenants to pay rent or to 
render any service in the nature of rent, covenants restricting 
the tenant in the use of the property, covenants to repair by 
either party, to keep the premises insured by one for the 
benefit of the other, not to assign or sublet without the con¬ 
sent of the landlord, and to renew the lease on terms stated. 
These are obviously the terms of the tenure by which the 
tenant holds the property from his landlord, and will be en¬ 
forced between the original parties in accord with the usual 
principles of contract. Implied covenants include the cove¬ 
nant of quiet enjoyment by the landlord, that the tenant will 
not be ousted from the whole or any part of the thing leased 
by the wrongful act of the landlord or by failure of his title, 
and the covenant on the part of the tenant to keep the property 
in repair, which is implied by law in order to give an action in 
implied assumpsit instead of the action in tort for permissive 
waste. The tenant’s duty to repair is part of the law of 
permissive waste, the history of which is treated in a later 
chapter. 11 The covenant of quiet enjoyment was implied by 
law under the old cases from the words “demisi” or “concessi” 
or their equivalents “demise” or “let,” the covenant not being 
implied in the absence of these words of letting. 12 The mod¬ 
ern law in England and most of the states has cast aside this 
technicality, the covenant being implied in all cases where the 
relationship of landlord and tenant has arisen other than 
tenancies at will, it being very clear that the words which 
happen to be used in a lease, whether by parol or in writing, 
involve a mere matter of form without difference in substance 
provided that they are sufficient to create the relationship 
of landlord and tenant between the parties. 13 The law in 

11 See §49, post. 13 Budd-Scott v. Daniel, 2 K.B. 

12 Andrew’s Case. Cro. Eliz. 214; 351; Mayor etc. v. Mabie, 13 N. Y. 

Spencer’s Case, 5 Coke 16; Wil- 360; Mack v. Patchin, 42 N. Y. 167; 
Hams, Real Prop. (17th ed.), 672. Duncklee v. Webber, 151 Mass. 402; 


148 HISTORY OF ENGLISH AND AMERICAN LAW 


detail relating to these covenants is not within the scope of 
this work. 14 

Covenants in leases express or implied run with the land 
so as to be enforceable by or against the tenant’s assignees, 
and by or against the landlord’s grantees. Probably over 
ninety-nine per cent, of all the cases of covenants running 
with the land to be found in the books involves covenants in 
leases. The assignee is bound by the covenants to pay rent, 
restricting the use of the leased property, to repair, to keep the 
buildings insured, and the like, not because he has made 
himself a party to them by express or implied contract, for 
he has not, but because he has become owner of the term, 
holding from the landlord by a tenure the terms of which are 
expressed in the lease, the terms in question being the so- 
called covenants. He takes the tenancy with the burdens as 
well as the benefits. He is liable for rent accruing while 
he continues to hold the term, but is not liable for rent accru¬ 
ing after assigning the term to a third person. The original 
tenant remains liable to the landlord for the rent and on the 
other covenants throughout the life of the lease because of 
his express promise; but, if he is forced to pay the landlord, 
he can hold his assignee or any subsequent assignee actually 
guilty of the breach, since the law recognizes the fact that, 
as between tenant and assignee, the primary liability is that of 
the assignee, the tenant being treated as secondarily liable, 
in other words as a surety. 15 We shall see later that nearly 
all covenants running with the land at law, as distinguished 
from covenants in equity, are enforced against subsequent 
grantees, heirs, and devisees, or by them as the case may be, 
on the same principle. They run with the land because they 
express either the terms and limitations of an estate held 


Statt v. Rutherford, 92 U. S. 107. 

The old rule still prevails appar¬ 
ently in New Jersey and New 
Hampshire. Mershon v. Williams, 
63 N. J. L. 398; Gano v. Vander- 


veer, 34 N. J. L. 293; Lovering v. 
Lovering, 13 N. H. 513. 

14 See Walsh, Real Prop., 272-292. 

15 lb. 


landlord and tenant 


149 


by one of the parties from the other in the same parcel, as 
when made between landlord and tenant or between life tenant 
and reversioner, or the terms under which an easement or 
other incorporeal right shall be enjoyed, when made between 
the owners of the dominant and the servient estates. They 
run with the tenancy for years no matter how often it may 
be assigned, because they constitute part and parcel of the 
tenancy, defining and limiting the terms under which it shall 
be held and enjoyed. The history of covenants running with 
the land, and the present state of the law of these covenants, 
will be dealt with in a later chapter. 18 

( d ) Surrenders take place when tenants convey or transfer 
their terms to their landlords. 17 Like assignments, surrenders 
by parol were good before the Statute of Frauds. The same 
section referred to above in connection with assignments pro¬ 
vides that no freehold estate or estate for a term of years, or 
any uncertain interest in lands, tenements, or hereditaments 
could be assigned, granted, or surrendered except by deed or 
note in writing signed by the person conveying, assigning, or 
surrendering, or by his agent duly authorized in writing, or 
by act or operation of law. 18 In New York and many other 
states, the English statute has been modified so that a parol 
surrender of a term for a year or less is valid, the statutes in 
the different states affecting surrenders being the same as those 
above referred to in connection with assignments. 19 Surren¬ 
der by act and operation of law arises, irrespective of the 
intent of the parties, where the parties have taken some action 
necessarily inconsistent with the continuing of the term. The 
usual case is where the tenant voluntarily surrenders posses¬ 
sion to the landlord, who accepts the possession and treats 
the property as his own thereafter. The law on this subject 
is part of the modern law of landlord and tenant and may be 
found in the modern texts on real property law. 20 

18 See §76, post. 19 See note 10, supra. 

17 Co. Litt., 378a. 20 See Tiffany, Land. & Ten.; 

18 29 Charles II, ch. 3, §3. Walsh, Real Prop., 335-344- 


CHAPTER VII 


CONVEYANCING OF LAND 


§3/. Early Elistory .—Positive knowledge of the law of 
conveyance of land in Saxon times is limited to bookland. 
But bookland, as we have seen, was the property of churches, 
abbeys, king’s thcgns, and the great generally. The estate 
of the ordinary simple freeholder with which the private law 
of land is far more concerned, was held by him under the 
customary law. We know that it was allodial, that it descend¬ 
ed to the heirs, and we are safe in the inference that it could 
be conveyed, subject to vague and ill-defined restraints in 
favor of the heirs of the owner. The remnants of this limi¬ 
tation on conveyancing we find expressed by Glanville just 
before it disappeared from the law . 1 That this was a rule 


§37. 1 “Any one also may give to 
whomsoever he pleases (whether 
the heir consent or not) any part 
of his free tenement by way of 
remuneration for services, or in 
favor of a place of religion by way 
of free alms, with the consequence 
that, if the gift has been followed 
up by seisin, the land shall be held 
forever by the donee and his heirs, 
if it was granted to him for an 
estate of inheritance. But, if the 
gift was not followed by livery of 
seisin, nothing could effectually be 
claimed by reason of such a gift 
after the death of the donor against 
the will of his heir, because such 
a transaction is regarded according 
to the established practice of the 
kingdom rather as a bare promise 
than as a valid promise or gift. 
And speaking generally any one 


may in his lifetime freely give to 
anyone a reasonable part of his 
land at his pleasure. . . . 

“Now when any one makes a 
grant of land by way of marriage 
gift or in any other mode, either 
he possesses hereditary land only, 
or acquired land, or both hereditary 
land and acquired land. 

“If he has hereditary land only 
he may, as has been said above, 
give a certain part of that inher¬ 
itance to any stranger he pleases. 
If, however, he has many sons born 
in lawful wedlock, he will not read¬ 
ily be able without the consent of 
his heir to grant to his younger son 
any part of his inheritance. . . . 
If however he who wishes to make 
a gift of a portion of his land have 
nothing but land which he has pur¬ 
chased, he may indeed do this, but 


CONVEYANCING OF LAND 


151 


of the ancient customary law going back into the Saxon time 
there can hardly be a doubt; and there can be little doubt that 
this was the one restriction upon the power of the customary 
freeholder of that period to convey his land. He held allodi- 
ally, not from an overlord; and, whatever restraint in favor 
of his lord upon the freeholder’s power to alienate may have 
been introduced by feudalism, there can be no reason for 
supposing that any such restraint existed prior to the Norman 
Conquest. 

There are two opposing theories of the right of the tenant 
to convey and the right of the lord to veto or limit such 
conveyances. Coke’s doctrine, that the tenant had a very 
extensive power to alienate, gradually cut down in the interest 
of the lord, 2 is opposed to the doctrine of Blackstone and 
most of the later writers on property law that, in the beginning, 
the fief of the tenant could not be conveyed at all, but his power 
to convey gradually developed as against the lord. 3 That 
there was some sort of limitation in this matter which could 
be insisted on by the lord as against his freehold tenant prior 
to Magna Carta is probably true, but we do not know what 
it was. All the evidence is strongly in favor of Coke’s posi- 


not to the extent of the whole of 
the purchased land, because he may 
not disinherit the son who is his 
heir. However if there be no son 
or daughter begotten of his body, 
he may then give any part of his 
purchased land to anyone he pleases, 
or the whole of it, for an estate of 
inheritance. . . . But if he have 
both purchased and hereditary land, 
then it is true without distinction 
that he can give any part he pleases 
of his purchased land, or the whole 
of it, to any other person in per¬ 
petuity, and he can nevertheless 
give also part of his hereditary land 


according to what has been said 
above, provided he does it reason¬ 
ably.” Glanv., lib. VII, cap. 1. 

These indefinite rules requiring 
the consent of the presumptive heir 
to conveyances in certain cases, 
quickly disappeared from the law 
early in the thirteenth century. See 
Digby, Hist. Law Real Prop. (5th 
ed.), 100, 101; Poll. & Mait., Hist. 
Eng. Law, II, 307-311. See also §3, 
ante. 

2 Coke, Inst., II, 65; Co. Litt., 43a. 

3 Bl., Comm., II, 71-72; Gilbert, 
Tenures, 51, 52. 


152 


HISTORY OF ENGLISH AND AMERICAN LAW 


tion. Glanville makes no suggestion of any restraint in favor 
of the lord upon the tenant’s right to convey; and he would 
almost certainly have referred to it if it had existed in any 
definite form when he discussed alienation with reference to 
the limitation thereon in favor of the heir or heirs of the 
tenant. 4 The first definite limitation of this kind of which we 
have knowledge is the provision of Magna Carta of 1217, the 
language of which implies a new provision cutting down a 
greater power of alienation in the tenant rather than an ex¬ 
tension of such power. 8 Bracton upholds the tenant’s power, 
either by subinfeudation or by substitution, in the broadest 
way, and he appears to make light of the express limitation 
of the great charter of 1217 above referred to; and Pollock 
and Maitland say that pleas and charters of that time indicate 
that the statute referred to had very little effect. 8 On the 
other hand, most of the charters which we have of the early 
Norman period have the consent of the lord and frequently 
that of the king. It seems to have been the custom to get 
the lord’s consent, and that indicates some power in the lord 
in the matter of alienations by his tenants; but we know 
practically nothing of the extent or limits of this power. 
There is no doubt that feudalism and Norman law had in some 
way limited the Saxon tenant’s power of alienation, and that 
the statute of 1217 was the determination of an unsettled and 
therefore indefinite question. 7 

§38. Subinfeudation and Substitution .—After feudalism 
was established and prior to the enactment of the Statute Quia 
Emptores discussed in the following section, the natural and 

4 See note 1, supra. 6 Bracton, f. 45b, 46b, 169b, 395; 

5 Magna Carta, 1217, ch. 39. No Poll. & Mait., Hist. Eng. Law, I, 
freeman from henceforth shall give 313. 

or sell any more of his land, but so 7 Poll. & Mait., Hist. Eng. Law, 
that of the residue the lord of the I, 320-327. See Digby, Hist. Law 
fee may have the service due to Real Prop. (5th ed.), 100, 101, 157, 
him which belongeth to the fee. 158. 


CONVEYANCING OF LAND 


153 


more usual way of conveyance was by subinfeudation, the 
more natural way because the tenant had acquired his interest 
from the lord in that form, and the more usual because the 
tenant could divide the land as he pleased and convey portions 
to different persons who became his tenants holding the land 
so conveyed to them subject to the dues and services provided 
for in the conveyances to them. The tenant-in-chief held of 
the king; his tenants in turn held of him; these tenants might 
convey to others who would hold from them in the same way. 
This process theoretically might be continued indefinitely; as 
a matter of fact, an actual case of six successive tenants hold¬ 
ing one of the other, referred to by Pollock and Maitland , 1 
was very unusual. This practice of conveyance by way of 
subinfeudation hurt the lord because his rights of wardship, 
marriage, and escheat were limited to the dues reserved by 
the tenant from the subfeudatory or subtenant. A tenant, X, 
might convey by subinfeudation to Y, reserving only a nominal 
rent. In case of X’s death, the lord’s right of wardship over 
his infant heirs or his right of escheat would be limited to 
this rent instead of the land, as X on his death would be 
owner of the rent in the place and stead of the land . 2 Subin¬ 
feudation could not affect the lord’s right to his dues and 
services; the land was charged with them in whosever hands 
it might have come by conveyance either in the form of sub¬ 
infeudation or substitution . 3 But, in the fourteenth century 
and thereafter, the dues and services of military tenure to 
which the lord was entitled were not as valuable usually as 
were the rights of wardship and marriage, which, as we have 
seen, were so developed in the interests of the lord as to make 
them the most important items of revenue derived from his 
military tenants . 4 

Conveyance by substituting a new tenant in the place of 

§38. 1 Poll. & Mait., Hist. Eng. 2 Poll. & Mait., Hist. Eng. Law, 

Law, I, 211. I, 311. 8 Id. 4 See §15, ante. 


154 


HISTORY OF ENGLISH AND AMERICAN LAW 


the tenant conveying, who would hold thereafter by the 
same tenure from the same lord, seems to have been used 
only where the tenant conveyed his entire property rather 
than a part of it. This became the sole method of conveyance 
after the Statute Quia Emptores had abolished subinfeudation. 6 

§3p. The Statute Quia Emptores —Damage to the lord’s 
interests arising out of subinfeudation led to the enactment of 
this statute in 1290, the 18th year of Edward I. 1 It enacted 
that thereafter it should be lawful for every freeman to sell 
at his own pleasure his lands and tenements, or part of them, so 
that the feoffee should hold the same lands and tenements of 
the same lord by such dues and services as his feoffor held 
before. The dues and services were to be ratably apportioned 
in case only a part of the land held by the tenant was conveyed 
by him. This statute was a compromise of the conflicting 
claims of lords and tenants. The lord gained freedom from 
losses of his escheats, wardships, and marriages by the abol¬ 
ishment of subinfeudation; the tenant gained the absolute 
right to convey the whole or any part of his land exactly as 
he pleased, free from the indefinite and ineffective limitations 
in favor of the lord discussed in a preceding section. 2 From 
this time on, subinfeudation ceased to exist; and the absolute 
right of the freehold tenant to convey as he pleased continued 
without further attempt to limit it down to the present time. 3 

The effect of this statute upon tenure is of the greatest im¬ 
portance in the history of the law. Tenure between feoffor 
and feoffee, grantor and grantee, in all cases of conveyances 
of estates in fee was, as we have seen, absolutely abolished, 
except in the cases of original grants made by the king. This 

B Poll. & Mait., Hist. Eng. Law, 2 See §7, ante. 

I, 311; Digby, Hist. Law Real Prop. 8 Digby, Hist. Law Real Prop. 
(5th ed.), 234, 235. (5th ed.), 234, 235; Poll. & Mait., 

§39- 1 Stat. Westm. Ill, 18 Ed- Hist. Eng. Law, I, 318. 
ward I, ch. 1. 


CONVEYANCING OF LAND 


155 


means that today, when a freehold tenant holds from a lord 
other than the king, his tenure must go back for its inception 
to 1290 or earlier. As time went on, these tenures were 
weakened by repeated conveyances, by the decline of feudalism, 
and by the great reduction in value of the dues and services 
incident to the tenure through the change in the purchasing 
power of money. In cases of socage tenure, where the rent 
or service was originally, or later became, of nominal value 
only, there was no incentive to keep up an empty relation; 
and, in such cases, all trace of the ancient tenure was lost. 
The conversion of military tenure into socage tenure by the 
Statute 12 Charles II, ch. 24, and the destruction of all valu¬ 
able incidents of military tenures, caused tenure between lord 
and tenant, where it continued to exist at all, rapidly to be¬ 
come an empty form; and the tenant became in practical effect 
allodial owner so far as any mesne lord was concerned. To¬ 
day, in the great majority of cases, no tenure between tenant 
and overlord is recognized in England; where it does exist, 
the relation between tenant and lord has been maintained by 
payment of rent or the performance of other duties from the 
tenant to the lord. It is obvious that the cases in which 
the tenure can be traced back to the date of the Statute Quia 
Emptores must be exceedingly few. 4 

Tenure between freehold owner and the king still exists 
theoretically in all cases; but this has no practical effect upon 
the law, since the right of escheat to the crown in case of the 
death of an owner intestate without heirs is a right of sover¬ 
eignty which would exist, as it does in the United States, 
quite independent of tenure. 

As to tenure in the United States, the land of the colonies 
was held under royal grants, by free and common socage; and, 
under the Statute Quia Emptores , no tenure could exist be- 

4 Digby, Hist. Law Real Prop., 

234-239; Williams, Real Prop (17th 

ed.), 79- 


156 HISTORY OF ENGLISH AND AMERICAN LAW 


tween a mesne lord and the freehold owners in possession. 
Therefore the only tenure which can be found there was the 
holding by the freehold owners from the king. After the 
revolution, the different states succeeded to the king’s feudal 
rights; and therefore any tenure existing in the United States 
is between the state and the freehold owner, without possi¬ 
bility of holding from a mesne lord. Every incident of 
feudal tenure has been abolished; no state has put forth any 
claim to feudal rights; and, in a number of states, as in New 
York, it is expressly enacted that the land of the state is held 
by allodial ownership, free from tenure in any form. 5 It is 
safe to assert, therefore, that, as a practical matter, tenure does 
not exist in the United States, but that the land is held allodi- 
ally free from tenure and its incidents. It exists as a matter 
of mere form only in those states which still recognize it. 
The state’s right of escheat is an incident of sovereignty, the 
same in all states whether tenure exists or not; and in no 
state can it be regarded as an incident of tenure. 6 

§40. Form of Conveyances.—Livery of Seisin .—The reg¬ 
ular method at common law of conveying a freehold estate 
in land, whether for life or in fee, by subinfeudation or by 
substitution, was by livery of seisin. By the latter part of 
the thirteenth century, conveyance by livery of seisin had 
assumed its final form which it maintained until it became 
obsolete after the new forms of conveyance under the Statute 
of Uses were introduced. 

Livery of seisin was the formal delivery of possession by 
the feoffor to the feoffee. This ceremony included the com- 

5 N. Y. Const., Art. I, §§11, 12. In New Jersey, South Carolina, and 
Constitutions or statutes in many Georgia, tenure between the owner 
other states, including Connecticut, and the state is recognized by stat- 
Ohio, Minnesota, Wisconsin, Cali- ute, but has no practical signifi- 
fomia, Virginia, West Virginia, and cance. 

Kentucky, are to the same effect. 6 Kent, Comm., Ill, 512-514. 


CONVEYANCING OF LAND 


157 


ing upon the land by the two parties to the conveyance, and 
the speaking of the words constituting the gift or feoffment, 
usually the phrase “give and grant” being used rather than the 
word “enfeoff.” If the feoffment was in the form 1 of a 
written deed or charter, it was read, and a further ceremony 
of investiture of the feoffee with the seisin and possession was 
usually performed. 1 The feoffor placed the hasp or ring of 
the door of the house which was being conveyed, in the hands 
of the feoffee; or, if there was no building, delivered to him 
a rod, or sometimes a glove, in symbolical delivery of the 
land conveyed. This had to be followed up by the actual 
surrender of possession by the feoffor and the actual taking 
of possession by the feoffee. This was insisted on as essential 
to the conveyance. Everything that preceded by way of 
ceremony went for nought if the legal possession did not 
actually and truly change hands. 2 

The feoffment, as distinguished from the livery, was either 
a deed or charter, the usual practice at a later time, though 
not common in the earlier time, or a parol statement by the 
donor to the donee of the gift and grant of the land. No 
writing was necessary prior to the Statute of Frauds. 3 This 
feoffment, whether in the form of spoken words or written 
deed, did not operate to convey the land; it was evidence of 
the extent and nature of the conveyance actually made by 
the livery. When in writing, the feoffment was in the form 
“know ye that I have given” instead of “I hereby give.” 


§40. 1 If the land was in view of 
the parties when the ceremony of 
investiture occurred, and it was fol¬ 
lowed up by actual change of pos¬ 
session during the life of the feof¬ 
for, there was a good conveyance. 
Poll. & Mait., Hist. Eng. Law, II, 
83; Bracton, f. 41. 

2 Pollock & Maitland say that in 
Bracton’s Note Book and in the 


earliest Year Books, hardly a ques¬ 
tion was commoner than whether 
there was a real and honest change 
of possession. Id., 84, note. 

3 Bracton, f. 33b. That feoff¬ 
ments were commonly made with¬ 
out charter as late as the time of 
Edward I, see Y.B. 20-21 Edward I, 
p. 32; Stat. Marlb., ch. 9. 


158 HISTORY OF ENGLISH AND AMERICAN LAW 


The feoffment without livery was a nullity. It could not be 
enforced as a contract to make livery, and it gave no right to 
the feoffee to enter and take possession without formal livery 
of seisin to him from the feoffor. The actual physical sym¬ 
bolical delivery of seisin or possession to the feoffee, which in 
turn had to be followed by a genuine transfer of real possession 
to be valid, was the essence of the conveyance. 4 

We know little of the form of conveyance used during the 
Saxon time, what we know being confined to bookland, and 
the fair inference being that the delivery of the charter, or 
“book,” operated to convey the land, and that it could be 
reconveyed by the redelivery of the charter. 5 It is probable 
that the customary allodial estate of the freeman was con¬ 
veyed by some form of formal delivery of possession to the 
donee and renunciation thereof by the donor with ceremony 
intended to impress the matter upon the memories of the wit¬ 
nesses, there having been no other record of the transaction. 6 
This was the ancient German practice, and there are many 
reasons for inferring that it was continued in England, while, 
on the continent, the old practice was modified at a time ante¬ 
dating the Norman Conquest, the old idea of symbolical de¬ 
livery being lost sight of through the practice of delivering 
any object not necessarily connected with the land and not 
on or in sight of the land, and ultimately regarding the thing 
so delivered as a gage or pledge for a later delivery of posses¬ 
sion. When deeds in writing came into use on the continent, 
delivery of the deed took the place of delivery of a rod, sod, 
or glove, and was regarded as equally effective in conveying 
land; so that, before the Conquest, land on the continent could 


4 Poll. & Mait., Hist. Eng. Law, 
II, 82, 83. 

5 Brunner, op. cit., 149-209, cited 

Poll. & Mait., Hist. Eng. Law, II, 
86 . 


6 Heusler, Gewere, 18; Brunner, 
Geschichte d. Urkunde, 104, 303; 
Poll. & Mait., Hist. Eng. Law, II, 
85, 86; Holdsworth, Hist. Eng. Lazo, 
II, 67. 


CONVEYANCING OF LAND 


159 


be conveyed by the delivery of a deed or charter without 
change of possession. 7 

After the Norman Conquest, during the early Norman 
period, we find no evidence that delivery of a deed or charter 
was regarded as a conveyance of ownership, except that some 
of the charters took the form of present deeds of conveyance 
instead of evidential recitals of conveyance by livery. Grad¬ 
ually the final form of recital, “Know ye that I have given 
and granted,” referred to above, took the place of the recital 
of present gift, “I give and grant.” These charters have 
frequent references to knives, rods, etc., used for symbolical 
delivery, which were delivered, not on the land in many 
cases, but in a law court or in a church. In the first half of 
the thirteenth century, it was still common for the parties to 
a conveyance to have their deed or charter read and attested 
in court. 8 However, the influence of the Roman law, which 
had turned away from the tendency of early Roman law, and 
in the thirteenth century insisted on a real delivery of posses¬ 
sion as essential to a valid conveyance of land, 9 seems to have 
worked upon English law so as to require a real delivery 
of the land. No symbolical delivery away from the land 
could amount to such a delivery. So the law took its final 
form as stated in the first part of this section, requiring livery 
on or in sight of the land followed by a true surrender and 
taking of possession. 10 


7 Poll. & Mait., Hist. Eng. Law, 
II, 86. 

8 Poll. & Mait., Hist. Eng. Law, 
II, 87, 88. 

9 Cod., 2, 3, 20; Bracton, f. 38b, 
41. Poll. & Mait., Hist. Eng. Law, 
II, 88. 

10 Bracton, lib. II, ch. 18, fol. 39. 
“Further a gift is not valid unless 
it be followed by delivery of pos¬ 
session, because the subject of the 
gift is not transferred by homage 


or by the execution of deeds or 
instruments, although they may 
have been read in public. Nor 
again is property transferred by an 
unreal delivery, when possession, 
though physically handed over, is 
intended to be retained, and when 
the giver means that the thing 
given should remain his own prop¬ 
erty rather than that it should pass 
to the donee, and when he does one 
thing and pretends to do another; 


i6o 


HISTORY OF ENGLISH AND AMERICAN LAW 


§41. Deeds of Release, Quitclaim, Surrender, and Grant .— 
A deed of release was used to convey the fee by the landlord 
or reversioner to the tenant for years or life tenant in posses¬ 
sion; also by the owner of the fee to an adverse possessor. 
In the thirteenth century, a written document without livery 
of seisin was sufficient to accomplish this result, the possession 
already being in the tenant to whom the release was made, 
making any formal transfer of seisin unnecessary. 1 The oper¬ 
ative word used at that time was “grant,” “render,” “remit,” 
“quit-claim,” rather than “release” which became the usual 
term at a later time when the instrument became known as a 
deed of release. The term “quit-claim” was frequently used, 
particularly in releases by the owner of the fee to one in 
adverse possession. Before the thirteenth century, it is prob¬ 
able that these conveyances had been made without writing, 
the delivery of a rod in connection with a quit-claim having 
been frequent. We find here the origin of the modern quit¬ 
claim deed, a special form of the deed of release. 2 

A deed of surrender was employed in case of a surrender 
by a tenant for years, for life, or in fee to his lord. In the 
case of the tenant for years, the landlord was already seised 
in demesne, and in the other cases the lord was seised in 
service, as we have seen, 3 and therefore a conveyance with 
livery of seisin would not be the proper form. Such deeds 
were common in the thirteenth century, the operative words 


but it is transferred only when the 
donor has given the donee full sei¬ 
sin by his own act if he be present, 
or by his attorney authorized in 
writing if he be absent, provided 
that the charter of donation and 
the letters of attorney be read in 
public before the neighbors spe¬ 
cially assembled for the purpose, 
and also when the donor has both 
in act and intention withdrawn 


from possession (if he be not pres¬ 
ent at the actual handing over of 
possession) without any expectation 
or intention of returning as owner, 
and when the donee has been estab¬ 
lished in the vacant possession both 
in act and intention. ...” 

§41. 1 Bracton, f. 41. 

2 Bracton, f. 45; Litt., §445; Poll. 
& Mait., Hist. Eng. Law, II, 90, 91. 

3 See §25, ante. 


CONVEYANCING OF LAND 


161 


used being “render and quit-claim.” 4 * Deeds in writing, how¬ 
ever, were not necessary in this case then or later, prior to 
the Statute of Frauds, although in common use. 6 

Deeds of grant were used to convey incorporeal interests in 
land, such as reversions and remainders, easements and servi¬ 
tudes. In these cases, livery of seisin could not be made since 
there was no physical thing to deliver. In the case of rever¬ 
sions and remainders, an attornment by the tenant for life or 
for years to the grantee was necessary to complete the con¬ 
veyance. This was accomplished by a simple oral acceptance 
of the new landlord or reversioner, or by payment of a nominal 
rent. If the tenant refused to attorn, the court would compel 
an attornment. 8 In the thirteenth century, Bracton stated that 
the landlord might enter on a termor’s land and convey by 
feoffment with livery, the possession of the tenant and the 
seisin of the landlord being in no way hostile the one to the 
other. In the period that followed, prior to the Statute of 
Uses, it was established, however, that he could not do this 
without the tenant’s consent, or unless he could do it when 
the tenant and his family were away from the land. 7 

From what is stated above, it is evident, therefore, that land 
could be conveyed by leasing it to a tenant for years and, 
after entry by him, releasing the reversion to him, or, in a case 
where a tenant for years, for life, or in fee tail was already 
in possession, the fee could be conveyed to a third person by 
grant and attornment. Therefore, prior to the Statute of 
Uses, land could be conveyed, not only by feoffment with 
livery of seisin, but also by lease and release and by grant 
and attornment. 8 


4 Guisborough Cartulary, pp. 50- 

5 S» 70, 156. Poll. & Mait., Hist. 
Eng. Law, II, 91. 

6 Co. Litt., 338a. 

8 Poll. & Mait., Hist. Eng. Law, 

II, 93. After the Statute, 4 Anne, 
ch. 16, an attornment was no longer 


necessary to complete a transfer of 
a reversion. See Digby, Hist. Law 
Real Prop. (5th ed.), 260. 

7 Litt., §567; Co. Litt., 48b; Bet- 
tesworth’s Case, 2 Coke, 31, 32. 

8 Digby, Hist Law Real Prop. 
(5th ed.), 260-262. 


HISTORY OF ENGLISH AND AMERICAN LAW 


162 

§42. Fines .—A fine was a final concord or settlement of a 
pretended action brought in the King’s Court for the purpose 
of transferring title to the complainant. It was started by a 
writ, in the earlier cases a writ of right or of mort d’ancestor, 
in later cases in the thirteenth century by writ of covenant or 
of warrantia carte. At a later time, Coke stated that any 
action which in any way related to land would answer the 
purpose. 1 In the usual case, the parties before pleading se¬ 
cured from the court leave to compromise, which the court 
granted without going into the facts of the case, except that, 
where a married woman was involved, the judges examined 
her apart to see that she was not being defrauded. The fine 
was then drafted by an officer of the court in triplicate, one 
copy being given to each of the parties and the third or “pes” 
being filed in the treasury to serve as a record. By this in¬ 
strument, the person conveying, the conusor, either confessed 
that the land or property right in question belonged to the 
other party, the conusee, or he granted or released his rights 
in the land to the other .party. The instrument then recited 
a benefit which the person conveying received, in some cases 
nominal, in others substantially the full value of the property. 2 

Fines were used in making conveyances because of their 
conclusiveness, both as evidence of the transaction and in their 
binding effect on all men not actually seised of the land. A 
fine ran in terms against “parties, privies, and strangers”; and, 
if seisin was in one of the parties, it became conclusive against 
all the world after a year and a day unless within that time 
any third person having an interest in the property asserted 
it by bringing an action or by causing his claim to be entered 
upon the copy or “pes” of the fine filed in the treasury. 3 Fur- 

542 . 1 Tey’s Case, 5 Coke, 39. the document to the parties, which 

2 Poll. & Mait., Hist. Eng. Law, was at least fifteen days after the 

II, 98, 99. concord had been made in court. 

3 Id., 100, 101. Bracton held that A little later, the old rule of a year 
the bar took effect on delivery of and a day was established, which 


CONVEYANCING OF LAND 


163 

thermore, the parties to the fine were compelled to comply with 
its provisions in all respects by an action resulting in imprison¬ 
ment to the party found guilty of a breach of its terms. If the 
seisin was in a stranger to the fine, it was void as to him and 
binding only as between the parties to the fine and their 
privies. The period of a year and a day did not begin to run 
until seisin was delivered to the conusee or grantee of the 
fine. There seems to be no doubt that the fine, of itself, did 
not transfer seisin. It gave the immediate right to seisin, and 
therefore transferred title; but seisin in fact had to be secured 
by an actual change of possession, either voluntarily given or 
enforced by execution of the fine. 4 

There seems to be no proof of fines having been used by 
Saxon England prior to the Conquest, though, on the Conti¬ 
nent, they may be traced to a much earlier date. After the 
Conquest, fines were undoubtedly used in one form or another 
in the county courts and the manorial courts of the lords. 5 In 
the latter part of Henry ITs reign, they took the form de¬ 
scribed above, though the use of a third document to be kept 
as a record in the treasury started with a fine dated July 15, 
Ir 95- fl 

Fines were abolished in England by Statute 3 and 4 William 
IV, ch. 74. They belong to the antiquities of the law and have 
no relation with modern conveyancing. 


§43. Conveyances Under the Statute of Uses .—Uses were 
estates in equity which developed during the two hundred 
years preceding the enactment of the Statute of Uses in 1535. 
After the statute, the term “trusts” was applied to all estates 


was the time allowed by ancient 
practice in Germany. The fine did 
not bind those under disability, as 
infants and persons beyond the 
seas. See Poll. & Mait., supra, II, 
101, and citations in notes. 


4 Poll. & Mait., Hist Eng. Law, 
II, 103-105. 

5 Poll. & Mait., Hist. Eng. Law. 
II, 94-96. 

6 Glanv., lib. VIII; Poll. & Mait., 
Hist. Eng. Law, II, 97. 


164 HISTORY OF ENGUSH AND AMERICAN LAW 

in equity which survived the statute, so that a use before the 
statute was the same kind of estate that we call a trust today, 
a trustee holding the legal title for the benefit of the beneficial 
owner or owners. For one reason or another, most of the 
land of England had come to be held in this way for some 
time before the statute was enacted. To remedy this situation, 
the Statute of Uses was passed, providing that all uses then 
existing or thereafter created should be converted at once 
into corresponding legal estates in the beneficiaries. By oper¬ 
ation of the statute, the legal title was taken out of the 
trustee and united with the beneficial ownership in the bene¬ 
ficiary, who became owner both at law and in equity. The 
history of uses and the effect of the statute is treated in 
detail in the subsequent chapter on uses and trusts. 1 

Before the statute, uses were created either by so-called 
“transmutation of possession,” that is, by feoffment with 
livery of seisin to the trustee, or without such transmutation, 
viz., by the person creating the use making himself trustee to 
the use of another. After the statute, there would be no 
object or advantage, in the usual case of a simple conveyance, 
in conveying by feoffment to a trustee to the use of another 
who would take the legal title by operation of the statute. 
The same result would be reached by a feoffment to such third 
person direct without using a trustee to uses. 2 But if the 
intended grantor could make himself trustee to the use of an¬ 
other by some overt act which would have created a valid use 
in equity before the statute, he could by the same act convey 
the legal title to the beneficiary of the use, as the statute would 
instantly operate on the use and convert it into legal ownership 
in such beneficiary. Two well defined methods of creating or 
“raising” a use without feoffment to a third person as trustee 
had been fully recognized and enforced in equity prior to the 
statute: a bargain and sale, and a covenant to stand seised. 


§ 43 . 1 See ch. 9 , post. 


2 See § 52 , post. 


CONVEYANCING OF LAND 


165 

In the first case, the owner contracted to sell the land to an¬ 
other for a valuable consideration. Equity construed this as 
a covenant to stand seised by the vendor or bargainor for 
the benefit of the vendee or bargainee, which equity would 
enforce because of the consideration of value paid or to be 
paid establishing that the transaction was a “business matter, 
not a mere promise to make a gift.” If the owner agreed 
to convey to or stand seised to the use of a closely related 
blood relative or the wife or husband of the covenantor, 
equity enforced it as a use because of the consideration of 
blood or marriage, which was the thing that moved equity 
to enforce the covenant, and in that sense the consideration. 3 
Immediately after the statute, conveyancers at once recognized 
the ease of conveying the legal title and seisin by the mere 
delivery of a simple deed of bargain and sale, without the 
technicality and ceremony of livery of seisin and the necessary 
change of possession which had to follow. The deed recited 
the bargain and sale between the parties, described the land 
conveyed, recited some consideration of value, which might 
be nominal, and, on the delivery of the deed to the bargainee, 
the use “raised” in him in equity was at once operated on by 
the statute and converted into a legal estate in fee or for life 
as may have been expressed in the deed. This deed operated 
by its mere delivery to transfer seisin in fact and law without 
entry on the part of the bargainee, and therefore without 
change in possession in fact, provided there was no adverse 
seisin in a third person at the time, something which, as we 
have just seen, could not be done even by a fine under the 
law as it stood up to that time. 4 This was entirely the result 
of the statute. 5 

Parliament at once recognized that secret conveyances, one 
of the evils sought to be removed by the Statute of Uses, 

6 Digby, Hist. Law Real Prop. 
(5th ed.), 366-368. 


3 See §§52, 53, post. 
* See §§41, 42, ante. 


166 


HISTORY OF ENGUSH AND AMERICAN LAW 


were as possible as ever by the use of bargains and sales, and, 
the same year (1535), passed the Statute of Enrollments, 8 
which provided that bargains and sales be enrolled in a 
superior court or before the custos rotulorum of the county 
where the land was situated. This statute by its express 
terms applied only to bargains and sales affecting freehold 
estates. It did not apply to a bargain and sale by the owner 
of the freehold for a term of years. To avoid the Statute of 
Enrollments, conveyancers hit upon the expedient of having 
the owner make a bargain and sale for a term of a year to 
the intended grantee of the fee, and then by deed of release 
convey to him the reversion in fee. The courts held that 
the bargain and sale transferred possession to the tenant for 
a year, just as seisin was transferred by a bargain and sale 
of an estate in fee duly enrolled, so that the deed of release 
then delivered could operate under common law rules. These 
deeds did not come under the statute and did not have to be 


8 Statute, 27 Henry VIII, ch. 16. 
“Be it enacted by the authority of 
this present parliament that from 
the last day of July, which shall be 
in the year of our Lord God 1536, 
no manors, lands, tenements, or 
other hereditaments, shall pass, 
alter, or change from one to an¬ 
other, whereby any estate of inher¬ 
itance or freehold shall be made to 
take effect in any person or persons, 
or any use thereof to be made, by 
reason only of any bargain and sale 
thereof, except the same bargain 
and sale be made by writing in¬ 
dented, sealed and enrolled in one 
of the King’s Courts of Record at 
Westminster; or else within the 
same county or counties where the 
same manors, lands or tenements 
so bargained or sold lie or be, be¬ 
fore the Custos Rotulorum and two 


Justices of the Peace and the Clerk 
of the Peace of the same county 
or counties, whereof the Clerk of 
the Peace to be one, and the said 
enrollment to be had and made 
within six months next after the 
date of the same writings indented. 
. . . And that the Clerk of the 
Peace for the time being, within 
every such county, shall sufficiently 
enroll and engross in parchment the 
same deeds or writings indented as 
is aforesaid, and the rolls thereof 
at the end of every year shall de¬ 
liver unto the said Custos Rotu¬ 
lorum of the same county for the 
time being, there to remain . . . 
to the intent that every party that 
hath to do therewith may resort 
and see the effect and tenor of 
every such writing so enrolled.” 


CONVEYANCING OF LAND 


167 


enrolled. This conveyance of lease by bargain and sale fol¬ 
lowed by release, or deed of lease and release as it was termed, 
entirely took the place of the old feoffment with livery of 
seisin and of deeds of bargain and sale enrolled, and consti¬ 
tuted the regular and usual way of conveying land inter vivos 
in England until 1841, when the first of the modern statutes 
in England regulating conveyances was enacted. 7 

In the United States, the Statute of Enrollments has not 
been regarded as in force, and therefore deeds of lease and 
release under the Statute of Uses have not been required for 
any purpose and have been seldom used. 8 Deeds of bargain 
and sale have been freely used in this country, and deeds in 
the common law form, ineffective as such because used in 
attempting to create a future executory estate void at common 
law, have been given effect as deeds of bargain and sale, if a 
consideration of value was recited in the instrument or actually 
paid, or as covenants to stand seised if a relationship of blood 
or marriage existed between the parties. This matter is more 
fully discussed in the chapter on future estates. 9 

§44. The Modern Deed of Conveyance .—The English 
Real Property Act now provides that all corporeal estates and 
interests may be conveyed by grant, exactly as incorporeal 
interests. 1 Another statute gives to a deed of release the 
same effect as a deed of lease and release. 2 These and other 
statutes have greatly shortened and simplified the modern deed 
in England. 3 In the United States, simple deeds of grant in 
a short form are generally expressly authorized by statute by 
which interests of every kind, corporeal or incorporeal, present 

7 Digby, Hist. Law Real Prop. 9 See preceding note; also §63, 
(5th ed.), 366-368; Williams, Real post. 

Prop. (17th ed.), 236-238. §44. 1 Stat. 8, 9, Viet., ch. 106. 

8 Rogers v. Eagle Fire Ins. Co., §2 (1845). 

9 Wend. (N. Y.) 611, 640; Jackson 2 Stat. 4, 5, Viet., ch. 21. 

v. Dunsbagh, 1 Johns. Cas. (N. Y.) 3 See Stat. 44, 45, Viet., ch. 41, 

91; Marshall v. Fisk, 6 Mass. 24. and 45, 46, Viet., ch. 39. 


i68 


HISTORY OF ENGLISH AND AMERICAN LAW 


or future, may be freely conveyed. 4 Deeds of bargain and 
sale are still used, but by statutory provision they are made 
to operate in all respects like the statutory deeds. 5 The mod¬ 
ern quit-claim deed is merely a form of deed of release, and 
is used most frequently, as was a deed of release or surrender 
at common law, to give up or release to the grantee a future 
interest or a present limited estate for life or for years, or an 
outstanding right of dower, lien, or other incumbrance upon 
the title of the grantee. 6 

A warranty deed, as distinguished from a quitclaim deed, is 
merely a deed of grant with the usual covenants of title added. 
Any deed, whether in the form of a deed of grant, common 
law feoffment, bargain and sale, quitclaim, or release, will 
be equally effective as a conveyance, the intent to convey 
being expressed, and will operate in practical effect as a 
quitclaim deed if the covenants of title are omitted, and as a 
deed of warranty if they are added, the only effect of the 
covenants being to give the grantee or his successor in interest 
a right of action for damages in case the title should prove 
defective. A deed without warranty, or a quitclaim, is all 
a purchaser of land is entitled to unless his contract calls for 
a warranty deed, since it is just as effective as a conveyance 
as is a deed of warranty. 7 On the other hand, he may reject 
the title as unmarketable because of defects though the con¬ 
tract calls for a quitclaim deed only. 8 


4 Stimson, Am. Stat. L., §1470; 
N. Y. Real Prop. L., §§241-246; 
Ross v. Adams, 28 N. J. L. 170. 

5 N. Y. Real Prop. L., §246. 

“Thorp v. Keokuk Coal Co., 48 
N. Y. 253; Wilhelm v. Wilken, 149 
N. Y. 447; Kyle v. Kavanagh, 103 
Mass. 356. 

7 Emerick v. Hackett, 192 N. Y. 


162; Kyle v. Kavanagh, 103 Mass. 
356 . 

8 Wallach v. Riverside Bank, 206, 
N. Y. 434. If the purpose is to sell 
such interest as the vendor has, sub¬ 
ject to all defects in the title, the 
contract should provide for a con¬ 
veyance of the “right title and in¬ 
terest” of the vendor. 


CHAPTER VIII 


INCIDENTS OF LEGAL OWNERSHIP 

§45. Real and Personal Property Distinguished .—In this 
chapter will be considered the more important incidents arising 
out of or affecting the legal ownership of land. Many of 
these incidents involve the distinction between real and per¬ 
sonal property, and therefore the origin and history of this 
distinction, and the true basis on which it stands, may best 
be considered here. 

Real property is land and everything attached to land so as 
to be identified with it as part of it. All other property is 
personal. The important exception is tenancies for years, 
which are chattel interests in land, chattels real. The histori¬ 
cal reasons for treating in this case as personal property what 
is in fact an estate carrying with it ownership of land, have 
been dealt with in an earlier chapter. 1 Land cannot be con¬ 
sumed or destroyed, must continue in existence for all time, or 
at least indefinitely, at the same place, cannot be transferred 
with its owner from place to place, cannot be concealed, 
removed, used up or otherwise disposed of by a wrongful taker 
from whom the owner may seek to recover it. Personal 
property will in most instances be used up in a very short 
time, may be freely transferred with the owner, concealed or 
otherwise disposed of by a wrongful taker so that the owner 
cannot get it back. These physical differences made it inevit¬ 
able that the rules of law applying to land should differ radi¬ 
cally from the rules of law applying to all kinds of property 
which are not land. The true basis for distinguishing land 
from other kinds of property always has been this physical 
difference. If the same rules of law applied to both kinds 
of property, there would be no reason for any distinction. 


§45. 1 See §32, ante. 


170 


HISTORY OF ENGUSH AND AMERICAN LAW 


The distinction made by Bracton between movable and 
immovable things expresses this idea. 2 During the Saxon 
period and thereafter down through the thirteenth century 
and beyond, personal property consisted chiefly of cattle and 
implements of husbandry. We have seen that practically 
all we know of the law of personal property in Saxon times 
was the right of the owner of cattle to pursue the thief who 
had stolen them, and by so doing recover his property as 
an incident of bringing the thief to punishment for his crime. 3 
We have seen how a complete outfit of actions protecting 
ownership and possession of land developed during the twelfth 
and thirteenth centuries, 4 and we shall see that the law lagged 
far behind in the protection of ownership and possession of 
personal property. 6 This difference in the development of 
the law of land and of personal things was due directly to the 
physical differences referred to above. Chattels, having in 
nearly all cases a comparatively short life, and having no 
fixed place, could not be the subject of feudal tenure; and 
therefore a chattel could not be subject to the various interests 
and the complicated system of law to which a piece of land 
was subject. When government and society were organized 
on the basis of land tenure, the comparative importance of 
personal property was not great. Necessarily the remedies 
given to protect ownership or possession of land differed 
altogether from the remedies applicable to personal property. 
As we shall see later, actions protecting personal property 
developed very slowly; they were for the most part brought in 
the local courts instead of the King’s Court. The owner of 
personalty was left to the old penal action of pursuing the 
thief as his only remedy in case his chattels were wrongfully 
taken from him, for a long time after the owner of land was 

2 Bracton, ff. 101, 102; Bl., 3 See §8, ante. 

Comm., II, ch. 2; Digby, Hist. Law * See §26, ante. 

Real Prop., 303, 304; Williams, Real s See §77, post. 

Prop. (17th ed.), 10, 11. 


INCIDENTS OF LEGAL OWNERSHIP 


171 

given his novel disseisin and other summary actions in the 
King’s Court. This was the natural result of the exclusion 
of personalty from feudal tenure. 6 

The terms “real” and “personal” as applied to the two 
kinds of property arose through the difference in these actions. 
Actions for the recovery of land were “real” actions, real in 
the sense that the land itself, the real thing in controversy, 
would be recovered. Though the old appeal of larceny, and 
its predecessor in Saxon times, resulted in the recovery of his 
chattel by the owner, this was largely incidental to the punish¬ 
ment of the thief. The personal actions which later developed 
as against those wrongfully taking or withholding chattels, 
resulted in the recovery of the money-value of the thing. 
Even in modern times up to the middle of the 19th century, the 
action of replevin was for the recovery of the chattel or its 
value; and payment of its value at the option of the wrong¬ 
doer prevented the recovery of the chattel. Therefore these 
actions were not “real” but personal. Eventually lawyers and 
judges came to apply the term “real” to property which was 
the subject-matter of real actions, and “personal” to all other 
kinds of property. It is obvious, of course, that this was a 
mere matter of the development of terms, a result of the fund¬ 
amental difference between the two classes of property, not a 
cause. 

Land has always included trees and other natural growth 
thereon, the soil and minerals below the surface. 7 Special 
questions arise in connection with questions of the owner’s 
right to water and game on his land, the nature of crops and 
fixtures, which will be taken up in the sections following. 
The topics of emblements and waste, involving questions of 
ownership between tenants for life and for years and the 
reversioner or remainderman in fee, are also included in 
this chapter. 

6 Holdsworth, Hist. Eng. Law, 7 Bl., Comm., II, 18, 19. 

Ill, 267, 268; Williams, Real Prop., 

11, 12. 


172 


HISTORY OF ENGLISH AND AMERICAN LAW 


§46. Special Property in Water and Wild Animals .—The 
owner of land has no absolute ownership of water on his land, 
whether in a spring, stream, pond, or mere surface water, or 
water percolating through the soil. Like the air above his 
land, he may use it while he has it; but, when it flows to his 
neighbor’s land, he loses all right to it. He has a right of 
user only, as the water is not part of the land. 1 The same 
principle applies to game and fish. While within the limits 
of a given parcel of land, the owner thereof has an exclusive 
right to capture the game or fish; but, when they pass to a 
neighbor’s land, his right to them ends, and the neighbor has 
the right which he had before. Therefore, if game is taken or 
fish are caught on his land by a trespasser, they become the 
property of the owner of the land in the absolute sense, since 
he alone had the right to capture them there; but if the hunter 
starts game on A’s land and drives it to B’s land, killing it 
there, it belongs to the hunter. It does not belong to A be¬ 
cause not captured on his land, nor to B because it did not 
come on B’s land of its own volition. 2 


§46. 1 Blackstone, speaking of 

•what passes under a deed, the land 
under water rather than the water, 
said: “For water is a moveable, 
wandering thing, and must of ne¬ 
cessity continue common by the law 
of nature; so that I can only have 
a temporary transient, usufructuary 
property therein; wherefore if a 
body of water runs out of my pond 
into another man’s, I have no right 
to reclaim it.” Bl., Comm., II, 12. 
See also, Race v. Ward, 4 E. & B. 
702, containing a review of the 
cases from the Year Books down 
bearing on the question of whether 
the right to take water from the 
land of a private owner could be 


gained by all the people of a com¬ 
munity through immemorial custom, 
the question turning on whether 
water was land or a product there¬ 
of, it being admitted that a profit 
a prendre could not be gained in 
favor of the community by custom, 
as being destructive of the fee. The 
court found that the right to take 
water by all the people of the town 
could be gained by immemorial 
user and custom, as an easement, 
the taking of water not being a 
profit, since water is not part of 
the land or a product thereof. 

2 Sutton v. Moody, I Ld. Raym. 
250; Cro. Car. 554; Bl., Comm., II, 
393 - 395 - 


INCIDENTS OF LEGAL OWNERSHIP 


173 


§ 47 - Emblements; Crops .—The right of a tenant at will, 
or the personal representative of a tenant for life, or any 
tenant holding a tenancy of uncertain duration, to enter after 
the tenancy has expired and remove a crop which the tenant 
sowed or planted before the ending of his tenancy is called the 
right of emblements. This right developed as part of the 
common law in the fourteenth and fifteenth centuries. Little¬ 
ton applied the doctrine to tenants at will, 1 and Coke extended 
it to cover all uncertain tenancies. 2 Where the tenant for life 
entered after the crop had been sowed by the former owner, 
and died before the crop matured, it was held that the right to 
emblements did not exist in his personal representative, as the 
tenant had not sowed the crop. 3 Also, where the tenant who 
sowed the crop brought his tenancy to an end by his own act 
before the crop matured, he was not entitled to emblements. 4 
The law of emblements has continued the same to the present 
day. Three requisites, as stated above, must be present to 
give the tenant this right. (1) The tenancy must have been 
of uncertain duration. (2) The tenant must have sowed or 
planted the crop himself. (3) The tenancy must have been. 


§47. 1 “If the lessee [tenant at 
will] soweth the land, and the lessor 
after it is sown, and before the corn 
is ripe, put him out, yet the lessee 
shall have the corn, and shall have 
free entry, egress and regress to cut 
and carry away the corn, because 
he knew not at what time the lessor 
would enter upon him. Otherwise 
it is, if tenant for years, which 
knoweth the end of his term, doth 
sow the land, and his term endeth 
before the corn is ripe.” Litt., §68. 
(Published in latter half of the fif¬ 
teenth century.) 

2 “And this is not only proper to 
a lessee at will . . . but to every 
particular tenant that hath an estate 


incertain.” Co. Litt., 55b; 10 Ass. 
pi. 6; Y.B. 18, 19 Edward III 
(R.S.) 466; 7 Henry IV, Trin. pi. 
15. The Year Books above referred 
to, sustaining Coke, were of about 
the middle of the fourteenth and 
the early part of the fifteenth cen¬ 
turies. 

8 Mr. Spencer's Case, Winch 51 
(Common Pleas 1622), referring to 
Allen’s Case, 18 Eliz. 

4 Thus where a tenant for life 
during widowhood married again, 
Oland’s Case, 5 Coke 116; Where 
the tenant for life forfeited his es¬ 
tate by committing waste, or a ten¬ 
ant at will voluntarily ended his 
estate, Cro. Eliz. 461; Co. Litt., 55a. 



174 


HISTORY OF ENGLISH AND AMERICAN LAW 


terminated before the maturing of the crop in some way other 
than by act or fault of the tenant. 


§48. Fixtures .—The law of fixtures is the most important 
branch of property law involving the distinction between realty 
and personalty. A fixture is a thing personal in its nature 
which has lost the character of personal property and has 
become a part of a definite parcel of land by permanent 
annexation. Whether the thing has become permanently 
annexed or not is a question of fact which must be decided 
according to the facts of each case. The test by which 
we determine permanency of annexation, gradually developing 
from the time of the year books, and not yet fully established 
or fully understood in some jurisdictions, is the intent with 
which the annexation was made as disclosed by the character 
of the annexation and the adaptability of the thing annexed 
to permanent use as part of the land. 1 

The early law started out with the simple rule that any 
chattel annexed in fact became part of the land to which it 
was attached. No test of permanency of annexation appears 
in the earliest cases, and probably no test was necessary in 
determining the questions of this kind arising in those days. 
Annexation in fact has always excluded mere implements, 
tools, and articles of furniture, used on the premises, because 
they are not in fact annexed. From the earliest times, how¬ 
ever, things actually annexed to land have been held to remain 


§48. 1 Hopewell Mills v. Taun¬ 

ton Sav. B., 150 Mass. 519 “. . . 
the intent to be sought is not the 
undisclosed purpose of the actor 
but the intention implied and mani¬ 
fested by his act. It is an intention 
which settles, not merely his own 
rights, but the rights of others who 
have or who may acquire interests 
in the property. They cannot know 


his secret purpose and their rights 
depend not upon that but upon the 
inferences to be drawn from what 
is external and visible.” To same 
effect, Snedeker v. Waring, 12 N. Y. 
170; Voorhis v. Freeman, 2 W. & S. 
(Pa.) 116; Talles v. Winton, 63 
Conn. 440; Patter v. Cromwell, 40 
N. Y. 287, and other cases cited, 
Walsh, Real Prop., 54, 55. 


INCIDENTS OF LEGAL OWNERSHIP 


175 


part of the land so as to pass with it, though at the time 
severed for some temporary purpose. Thus, in the time of 
Henry VIII, the court held that millstones passed on a con¬ 
veyance of the mill though temporarily removed at the time 
to be picked and subsequently restored to the mill; 2 and, in 
Coke’s time, keys of a house, though most of the time carried 
by the owner, were held to be part of the freehold. 3 Fixtures 
were either: articles of domestic convenience attached to 
houses, which have always had to be attached to the house 
in some definite way so as to prevent them from being classed 
as mere tools or articles of furniture; fixtures annexed for the 
purposes of trade or manufacture; and agricultural fixtures. 
The very simple character of the houses and the limited 
amount of trade and manufacture, the absence of heavy per¬ 
manent machinery requiring a fixed place and the prevalence 
of simple hand tools in the different crafts and in farming, 
must have left little room for doubt in the early period in 
cases of annexations made by owners in fee. The things 
that required fastening in a fixed position in houses or build¬ 
ings used for manufacturing purposes were no doubt in prac¬ 
tically all cases fixtures according to the modern test of intent; 
so there was originally little or no occasion for the test of 
intent in determining permanency of annexation. This gen¬ 
eral situation apparently continued without much change down 
to the eighteenth century, the early history of the law of fix¬ 
tures centering in the cases affecting fixtures annexed by 
tenants for years or for life. 

In the latter part of the eighteenth century, we find cases 
which by implication, though not in express terms, recognize 
intent as the test of permanency of annexation which con¬ 
verts a chattel into a fixture. In 1782, Lord Mansfield de¬ 
cided that salt pans used in salt works, fastened to the floor 
very slightly by mortar and removable without material dam- 

2 Wystow’s Case, Y.B. 14 Henry 3 Liford’s Case, 11 Coke, 50b. 
VIII, 25b. 


i 7 6 HISTORY OF ENGLISH AND AMERICAN LAW 


age to the property other than in the loss of the pans, were 
real property and passed with the inheritance to the heir. He 
said: “They are accessories necessary to the enjoyment and 
use of the principal. The owner erected them for the benefit 
of the inheritance; he could never mean to give them to the 
executor and put him to the expense of taking them away 
without any advantage to him, who could only have the old 
materials.” 4 5 By this time the simple domestic arrangements 
and manufacture by simple tools and appliances were being 
affected by the early beginnings of the great industrial devel¬ 
opment of the nineteenth century, due largely to the develop¬ 
ment of machinery and of large manufacturing plants. In 
another case, Lord Mansfield held that a steelyard hung in 
a machine house and used for weighing coal and other things 
brought to market was a fixture. He said: “The steelyard is 
the most valuable part of the house. The house, therefore, 
applied to this use, may be said to be built for the steelyard, 
and not the steelyard for the house.” 6 


4 Lawton v. Salmon, i H. Bl. 259, 
note. This really sums up the mod¬ 
ern principle of the law of fixtures. 
Permanency of annexation depends 
on intent as disclosed by the cir¬ 
cumstances; and if the things in 
question are so adaptable to the 
freehold that their full value is 
found only in their remaining part 
of the freehold, while the removal 
of them would take away from 
their value, the intent to make them 
part of the realty is clear. 

5 Rex v. Inhabitants of St. Nich¬ 
olas, Gloucester, 262. The modern 
rule treating as fixtures all the per¬ 
manent machinery of a mill or fac¬ 
tory localized in use, and intended 

for permanent use as part of the 
mill or factory, is here not only 
foreshadowed, but specifically laid 


down with the principle on which 
it stands. The mill or factory is 
merely a place in which to work 
the machinery. The adaptability for 
use in connection with the realty in 
connection with the permanent use 
to which the land has been appro¬ 
priated in the building of the mill 
or factory, establishes the intent to 
install the machinery as a perma¬ 
nent part of the mill or factory; 
mill or factory and its machinery 
are intended to constitute a single 
thing, a manufacturing plant, and 
the permanent machinery as distin¬ 
guished from mere tools and fur¬ 
niture are as much a part of the 
plant as the building—in fact the 
more important part. To same gen¬ 
eral effect, see Rex v. Hogg, Calde¬ 
cott, 266. 


INCIDENTS OF LEGAL OWNERSHIP 


177 


An early case in Maine (1829) decided that a loose chain 
made for a saw mill with a hook to be fastened on an arm 
connected with the power by which the mill was operated, and 
used to fasten around logs and draw them up to position for 
sawing them, passed on conveyance as part of the mill though 
it could be detached from the rest of the machinery by merely 
unhooking it. The full measure of the modern rule was 
reached in this case, and the principle laid down by Lord 
Mansfield was developed and applied. The chain was part 
of the permanent equipment for drawing up the logs to posi¬ 
tion for sawing; it was therefore as much part of the mill as 
the machinery to which it was attached, admittedly part of 
the realty. It was permanently annexed because it was the 
obvious intention to make it part of the permanent equip¬ 
ment of the mill.® In 1841, a Pennsylvania case decided that 
rolls of an iron-rolling-mill used as part of heavy permanent 
rolling-machines, were part of the machines and therefore 
part of the mill, though they were of assorted sizes for differ¬ 
ent operations and were not at all times attached to the 
machines but kept on the premises in reserve for use as needed 
either in different operations or to replace broken rolls. The 
court points out the many cases where the test of mere physical 
attachment would bring about impossible results, stripping 
mills of essential machinery, destruction of much of the value 
of the machinery by permitting their separate sale as person¬ 
alty either on execution or otherwise. 7 These two cases are 
the basis of the law applying to machinery in manufacturing 
plants in the United States. Through these and later cases 
cited in a preceding note, 8 the modern test of a fixture, intent 
to annex permanently, construing the facts as disclosing the 
intent of the average man in the position of the person annex- 

6 Farrar v. Stackpole, 6 Maine (6 8 See cases cited in note I, supra ; 

Greenl.) 154. also Walsh, Real Prop., 54-60, and 

7 Voorhis v. Freeman, 2 Watts & cases therein cited and discussed. 
Serg. (Pa.) 116. 


I 7 8 HISTORY OF ENGLISH AND AMERICAN LAW 


ing, has been fully established as the prevailing rule in most 
jurisdictions. 

Modern improvements in houses have brought a correspond¬ 
ing development in the law of fixtures in dwellings. A lead¬ 
ing English case expressing the modern view was decided in 
1823. Stoves, grates, kitchen ranges, closets, shelves, brewing 
coppers, cooling coppers, wash tubs, locks, bolts, bells, and 
bell pulls were taken possession of by the purchaser of a man¬ 
sion house when the house was turned over to him. The 
vendor demanded their return and sued in traver. The 
court held that the action would not lie, that most of the 
articles passed with the house as fixtures, and the few 
which were movables were not separately demanded. 9 Light¬ 
ing fixtures came in with the use of illuminating gas 
about seventy years ago. By following the false analogy to 
lamps and candlesticks which, of course, were mere movables, 
the courts held in most jurisdictions that gas fixtures, gas 
stoves, etc., were personal property as a matter of law, though 
annexed by the owner in fee, permitting him to take them out 
as against a vendor of the house. That this was wrong is 
proved in a practical way by the fact that owners do not 
assert any such right; the house with the lighting fixtures is 
turned over as a matter of course to the purchaser. This is 
generally provided for in the contract of sale in order to 
meet the situation created by these cases. 10 Later cases have, 
in some states, by distinguishing the earlier decisions, estab¬ 
lished the better view that whether lighting fixtures are part 
of the realty or not must be submitted as a question of fact to 
the jury, their decision depending on the intent of the person 
who annexed the fixtures as an average man, the intent to be 
inferred from the facts. It is difficult to see how any doubt 
of the intent to annex them permanently can exist where they 

9 Colegrave v. Dias Santos, 2 St. Reps. 552; McKeage v. Hanover 
Barn. & Cres. 76 (King’s B.). Fire Ins. Co., 81 N. Y. 38; Capehart 

10 Vanghen v. Haldeman, 33 Pa. v. Foster, ( 61 Minn. 132. 


INCIDENTS OF LEGAL OWNERSHIP 


179 


are annexed by the owner in fee. 11 Plumbing and heating fix¬ 
tures are part of the building, including furnaces and radia¬ 
tors, 12 though some cases hold that radiators are personal 
property. 13 

Fixtures annexed by tenants for years or for life have a 
separate history in the law of fixtures. At first no distinction 
was made; they became part of the land, and the tenant lost 
all right to them if actually affixed to the land so as to become 
fixtures if annexed by the owner of the fee. 14 An exception 
to this rule, permitting such tenants to remove fixtures annexed 
by them for the purpose of trade or manufacture, seems to be 
almost as old as the rule itself. In Year Book, 42 Edward 
III, 6, the right of a tenant to remove a furnace erected by 
him was doubted and the case adjourned. In Year Book, 20 
Henry VII 13, a. b. where the tenant had affixed a furnace 
with mortar, it is stated: “If a lessee make a furnace for his 
advantage or a dyer made his vats or vessels to occupy his 
occupation during his term, he may remove them; but if he 
suffer them to be affixed to the earth after the term, then they 
belong to the lessor.” This would seem to imply that the 
reason why he could remove them was the fact that he had 
annexed them for his own benefit during the term only, prob¬ 
ably the earliest expression of intent of the annexor as a test 
of permanent annexation. A later case of Henry VII’s reign 
doubted this, and limited the rule to fixtures so attached to 
the ground but not to the walls of buildings. 15 Gradually 


11 Hook v. Balton, 199 Mass. 
244; Cunningham v. Seaboard R. 
Co., 67 N. J. Eq. 210 (Semble); 
Canning v. Owen, 22 R. I. 624 
(electric fixtures realty) ; Fratt v. 
Whittier, 58 Cal. 126; Jackson v. 
Wiseman, 4 Mete. (Ky.), 357. 

12 Smyth v. Sturges, 108 N. Y. 
495; Thielman v. Carr, 75 Ill. 385; 
Dame y. Wood, 75 N. H. 38; Cape- 


hart v. Foster, 61 Minn. 132; Hook 
v. Bolton, 199 Mass. 244. 

13 National Bank v. North, 160 
Pa. St., 303. 

14 Y.B. 17 Edward II, 518; Her- 
lakenden's Case, 4 Coke 64; Co. 
Litt.. 53; Cooke v. Humphrey, 
Moore, 177; Lord Darby v. As¬ 
quith, 234; these authorities hold¬ 
ing it to be waste for the tenant to 


i8o 


HISTORY OF ENGLISH AND AMERICAN LAW 


the rule was established that a tenant could remove all kinds 
of fixtures annexed for the purpose of trade or manufacture 
during the term or at its end, Lord Holt laying down the rule 
in Poole’s Case, 16 that the tenant could remove such fixtures 
during the term by common law, not merely by custom, in 
order to encourage trade and industry, but that after the term, 
they became a gift in law to the reversioner and could not be 
taken away. He said that this rule did not extend to hearths, 
chimney pieces and the like added by the tenant to his house. 
Later the exception was extended to fixtures annexed to 
houses by tenants for years 17 and to buildings themselves if 
erected for the purposes of trade or manufacture. 18 In Elwes 
v. Maw, 19 Lord Ellenborough decided shortly after—in spite 
of dicta in an earlier case by Lord Kenyon that the rule should 
extend to all buildings erected by tenants during the term 
whether for the purpose of trade or not 20 —that permanent 
farm outbuildings erected of stone and brick and mortar by 
a tenant of the farm could not be removed by him. In all 
these cases, from Lord Holt’s decision down, there was no 
suggestion that the tenant could remove these fixtures because 
the tenant had not intended to annex them permanently, which 
seems to be so clearly suggested in the first decision for the 
rule in the Year Book, 20 Henry VII, above referred to. All 
the later cases go on the basis of an exception to the general 
rule in order to encourage the tenant to make improvements 
in furtherance of trade and industry. There seems to be no 
real distinction between tenants for life and tenants for years 
in these cases, and obviously the reason for the exception is as 
strong in one case as in the other. 21 Part of the rule is that 


take away such annexations made 
by him. 

15 21 Henry VII, 27. 

16 Salk. 368. Here the fixtures 
were levied on and sold as the per¬ 
sonal property of the tenant. 

17 Beck v. Rebow, 1 P. Wms., 94; 


Ex parte Quincey, 1 Atk. 477; Law- 
ton v. Lawton, 3 Atk. 13 (1743). 

18 Penton v. Robart, 2 East. 88. 

19 3 East. 38. 

20 Dean v. Allaby, Nisi Prius, 
Woodfall, 207. 

21 Lawton v. Lawton, 3 Atk. 12 
( 1743 )- 


INCIDENTS OF LEGAL OWNERSHIP 


181 


the tenant must remove the fixtures during the term; if he 
leaves them behind on quitting possession, he cannot after¬ 
wards take them away. However, if he holds over, he may 
take his fixtures with him on moving, as there is no giving up 
of the fixtures to the land in such case. There is no gift in 
law to the reversioner as laid down by Lord Holt in Poole’s 
Case, supra . 22 

If the tenant makes a new lease without specifically reserv¬ 
ing the right to remove the fixtures, he loses all right to them 
according to the English cases and by weight of authority in 
the United States. Some cases reach this result by holding 
that the fixture is part of the land and therefore the landlord’s 
property throughout; that the tenant is given a right of remov¬ 
al during the term as a special favor to encourage industry 
and trade, and if he fails to exercise that right by actually 
removing the fixture or by reserving it in the new lease, he 
loses the right when the new lease takes effect . 23 But the 
modern rule in most states is that the fixture does not become 
part of the realty; it remains the tenant’s personal property, 
hence his right to remove it . 24 Other cases sustaining the 
general rule base it on a technical interval at the end of the 


22 Penton v. Robart, 2 East. 88; 
Weeton v. Woodcock, 7 M. & W. 
14; McIntosh v. Trotter, 3 M. & W. 
184; Lewis v. Ocean Nav. & Pier 
Co., 125 N. Y. 341. 

A tenant holding indefinitely, as 
a tenant for life or at will, has a 
reasonable time after termination of 
his tenancy in which to remove his 
fixtures. Martin v. Roe, 7 E. & B. 
237; Ellis v. Page, 1 Pick. (Mass.) 
43 , 49 - 

28 That the tenant’s fixtures are 
removable throughout, see Holland 
v. Hodgson, L. R. 7 C. P. 328, 336; 
Freeman v. Dawson, no U. S. 264, 


270; Stockwell v. Marks, 17 Me. 
455; Brown v. Wallis, 115 Mass. 
156, and Raddin v. Arnold, 116 
Mass. 270, (holding that replevin 
will not lie for such fixtures before 
severance since they are part of the 
realty, subject to the tenant’s right 
of removal). Donnelly v. Thieben, 
9 Ill. App. 495, and Carlin v. Ritter, 
68 Md. 468, explain the rule that a 
tenant loses his right to the fixtures 
by making a new lease, asserting 
that they are realty throughout, the 
tenant losing his special privilege of 
removal. See Walsh, Real Prop., 
75 , 76, 83. 


182 


HISTORY OF ENGLISH AND AMERICAN LAW 


first term during which the fixture becomes the landlord’s 
property as though the tenant had moved away leaving the 
fixture behind. 25 The reason why the tenant loses his re¬ 
movable fixtures when he leaves them behind on moving away 
at the end of the term is that he would be in substantially the 
same position as a trespasser annexing fixtures. 26 But a ten¬ 
ant holding under a new lease is not a trespasser. He con¬ 
tinues his possession as a matter of right and no interval in 
fact occurs between his possession under the old and the new 
leases. These cases are bad law, involving in every instance 
the wrongful transfer of the tenant’s property to his landlord 
contrary to their intent and without the shadow of reason. 
Well considered cases holding the other way have been de¬ 
cided in several states. 27 The error of the cases establishing 
the prevailing rule cannot be corrected too soon. 

The exception in favor of tenants permitting them to remove 
trade fixtures and fixtures annexed to houses for domestic 
convenience was extended to cover fixtures annexed to farms 
other than permanent buildings, and this exception in its prac¬ 
tical application long ago became so comprehensive that it 
included every possible case except buildings not erected for 
purposes of trade. Therefore the exception has swallowed up 
the rule, and tenants may now remove every kind of fixture 
annexed by them unless its removal would do serious injury 
to the land or building to which it is attached, or unless re¬ 
moval would greatly impair the value of the fixture. In 


24 Globe Marble Mills Co. v. 
Quinn, 76 N. Y. 23; Heffnes v. 
Lewis, 73 Pa. St. 302; Bartlett v. 
Haviland, 92 Mich. 552; Beloit etc. 
Bank v. Merrill Co., 69 Wis. 501, 
and other cases cited, Walsh, Real 
Prop., 76. 

25 Longhran v. Ross, 45 N. Y. 
792; Stephens v. Ely, 162 N. Y. 79; 
Gerbert v. Trustees, etc., 59 N. J. L. 


160; Watriss v. Nat. Bank of Cam¬ 
bridge, 124 Mass. 571, and other 
cases cited, Walsh, Real Prop., 83, 
note 10. 

26 Torrey v. Burnett, 38 N. J. L. 
457 - 

27 Kerr v. Kingsbury, 39 Mich. 
150; Radey v. McCurdy, 209 Pa. St. 
306; Sec. Nat. Bank v. Merrill Co., 
69 Wis. 501; Thomas v. Gayle, 134 


INCIDENTS OF LEGAL OWNERSHIP 183 

those cases, the inference is that the average tenant would not 
have intended to remove it. Therefore the modern rule is 
that fixtures annexed by tenants become at once part of the 
land when the tenant intends a permanent annexation in the 
cases just referred to where they have no right to remove 
them. In all other cases where the right of removal exists, 
they do not become part of the land, because the tenant did 
not intend a permanent annexation. Thus the same test of 
the intent of the average man becomes the test of the per¬ 
manency of annexation necessary to change a chattel into real 
property in all cases, whether the annexation be by the owner 
in fee or by a tenant for life or for years or by a licensee. 28 
Annexations by a trespasser are treated as though they had 
been made by the owner, as stated above. 

Fixtures annexed under an agreement reserving title in a 
stranger to the property, or under a chattel mortgage or con¬ 
tract of conditional sale which have the same result, do not 
become part of the realty, since their ownership is severed 
from the ownership of the land to which they are attached. 
The law affecting these cases is modern law, turning to a con¬ 
siderable extent on varying statutory provisions in different 
jurisdictions, and belongs therefore to a treatise on real prop¬ 
erty law. 29 It should be noted, however, that the term “fix¬ 
ture” applies to things so affixed though they are not part of 
the realty, provided they are affixed in such way that they 
would become part of the land in the absence of the special 
agreement, chattel mortgage, or contract of conditional sale 
above referred to. The same is true of a tenant’s removable 
fixtures, including nearly all fixtures annexed to land by ten- 

Ky. 330. Bernheimer v. Adams, 70 have turned on another point. See 
App. Div. (N. Y.) 114, argues also Beige v. Herring Safe Co., 136 

strongly against the rule as laid Fed. 368. 

down in the Court of Appeals in 28 See text and cases cited, Walsh, 
Loughran v. Ross, supra; and it Real Prop., 78, 79. 
was affirmed, 175 N. Y. 472, with- 29 Id. 
out opinion; but the case would 


184 HISTORY OF ENGLISH AND AMERICAN LAW 


ants provided they also are so annexed that they would be 
fixtures if the owner in fee had annexed them. They are 
the tenant’s personal property and therefore not part of the 
land. In both these cases, they are called personal fixtures 
as distinguished from real fixtures annexed by owners in fee. 80 


§49. Waste .—Waste is permanent injury done to land 
by a tenant for life or for years. It is called voluntary waste 
when it is the result of a wilful act of destruction on the part 
of the tenant; it is called permissive waste when the permanent 
damage arises out of failure to make necessary repairs so that 
the property goes to ruin and decay. 1 

Coke and Blackstone say that, before the Statute of Marl¬ 
borough (1267), tenants in dower and curtesy and guardians 
in chivalry were alone liable for waste, the ordinary tenant for 
life or for years being free to do as he pleased with the prop¬ 
erty. Blackstone says that the reason for this was “that the 
estate of the three former was created by the act of the law 
itself, which therefore gave a remedy against them; but tenant 
for life or for years, came in by demise and lease of the owner 
of the fee, and therefore he might have provided against the 
committing of waste by his lessee; and if he did not it was 
his own default.” 2 Pollock and Maitland say this position 
is too definite, as, for some little time before the Statute of 
Marlborough, actions of waste were brought against ordinary 
tenants for life. 3 However, tenants for life other than tenants 


80 See Walsh, Real Prop., 45-46, 
64-72. 

§49. 1 Bl., Comm., II, 281; Co. 

Lift., 53. 

2 Bl., Comm., II, 282, 283; Coke, 
Inst., II, 299. Blackstone states in 
a note that the liability of a tenant 
in curtesy was doubtful prior to the 
statute, citing Regist. 72; Brooke, 
Abr., Waste, 88; Coke, Inst., II, 301. 


8 Poll. & Mait., Hist. Eng. Law, 
II, 9, citing Bractoris Note Book, 
pi. 443, 540, 607, 1304, 1371. They 
also point out that the reversioner 
might possibly enter and hold the 
land until damage through waste 
had been made good by the tenant 
and security given against further 
waste, citing Bracton, f. 169; Brit¬ 
ton, I, 290. 


INCIDENTS OF LEGAL OWNERSHIP 


185 


in dower and curtesy seem not to have been liable unless they 
had received a royal prohibition against waste. 4 The pro¬ 
visions of Westminster, 1259, provided against waste by a 
tenant for years. The Statute of Marlborough (1267) 5 * made 
“farmers” liable for waste which the lord had not specially 
allowed. The Statute of Gloucester (1278) 8 provided “that 
a man from henceforth shall have a writ of waste in the 
Chancery against him that holdeth by the law of England or 
otherwise for term of life or for term of years or a woman fn 
dower. And he which shall be attainted of waste shall lose 
the thing that he hath wasted, and moreover shall recompense 
thrice so much as the waste shall be taxed at.” In 1292, the 
heir of the reversioner was given the right to sue in waste, 
removing doubt on that point. 7 In 1433, tenants for life of 
uses were made liable for waste. 8 

The decisions reported in the Year Books applying these 
statutes established the law of waste much as it is today. The 
tenant was liable only for a wilful or negligent act of his 
own, not for mere accident or destruction by the public enemy. 9 
Destruction by voluntary act of a stranger, not a public enemy, 
was held waste. 10 This departure from the general principle 
that the tenant was liable only for his own wrongful acts, 
was undoubtedly based on the lack of remedy of the landlord 
against the stranger, who could be held in trespass by the 
tenant only. The subsequent development of the action on 


4 Bracton, f. 315, Bracton’s Note 
Book, pi. 574; Poll. & Mait., Hist. 
Eng. Law, II, 9; Holdsworth, Hist. 
Eng. Law, III, 104. 

5 52 Henry III, ch. 23. 

8 6 Edward I, ch. 5. The Statute, 
13 Edward I, St. I, ch. 14, cleared 
up the doubt as to whether diso¬ 
bedience of a royal prohibition was 
essential to waste. 

7 20 Edward I, St. 2. 

8 11 Henry VI, ch. 5. 


9 Y.B. 21, 22 Edward I, 30; 30, 31 
Edward I, 480; Bl., Comm., II, 281. 
The same principle was applied in 
Y.B. Edward III, Parch, p. 33 , 
holding that the tenant was not 
liable for permanent damage aris¬ 
ing out of the defective condition 
of the property, without fault on 
the tenant’s part. 

10 Anonymous, Fitz., Abr., Waste, 
pl. 30 ( 1345 )- 


186 


HISTORY OF ENGLISH AND AMERICAN LAW 


the case, permitting an action by the reversioner against the 
stranger in such case, removed all reason for the rule; never¬ 
theless it has persisted to the present time. A recent decision 
of the New York Court of Appeals makes clear that the old 
rule is no longer supported by any reason, and this case must 
be regarded as overthrowing it, though the case is strictly 
dicta on that point, as it was not necessarily involved in the 
decision. 11 

Whether tenants for life and tenants for years are liable 
for permissive waste has been a matter of controversy in the 
modern cases. In England, it seems to be now settled that 
a tenant for life, or his personal representative on his death, 
cannot be held for failure to make repairs no matter what 
damage to the property may result, 12 while the liability of a 
tenant for years is left in doubt. 13 In the United States, it is 
held in well considered cases fully sustained by the earlier 
English authorities, that tenants for life and for years are 
liable for permissive waste for the same reasons which make 
them liable for voluntary waste; that permitting the property 
to go to ruin and decay for want of repairs was waste before 
the Statute of Gloucester; that the statute in no way attempted 
to define waste but merely gave a remedy in all cases of waste 
to all tenants for life and for years, leaving the determination 
of what was and what was not waste to the courts. 14 Coke 


11 Rogers v. Atl. Gulf & Pac. Co., 
213 N. Y. 246. The court expressly 
disapproved of the position taken in 
Regan v. Luthy, 34 N. Y. St. Rep., 
10, which held that a tenant was 
liable in waste for damage com¬ 
mitted by burglars who broke in 
and cut out lead pipe from the 
plumbing during the tenant’s ab¬ 
sence, there being admittedly no 
fault or negligence on the tenant’s 
part. See cases cited in Walsh, 
Real Prop., 87, showing that the old 


rule has generally continued to be 
the law down to the present. 

12 In re Cartwright, 41 Ch. Div. 
532 - 

13 Ferguson v. -, 2 Esp. 590; 

Herne v. Bernbow, 4 Taunton 764; 
Hartnett v. Maitland, 16 M. & W. 
257; Davies v. Davies, 38 Ch. Div. 
299 . 

14 Moore v. Townshend, 33 N. J. 
L. 284; Newbold v. Brown, 44 N. 
J. L. 266; Lothrop v. Thayer, 138 
Mass. 466; Suyndham v. Jackson, 


INCIDENTS OF LEGAL OWNERSHIP 187 


and Blackstone fully support this position, as do the earlier 
English cases . 13 

Ameliorating waste, or improvements made by the tenant 
adding rather than taking away from the value of the fee, 
gave rise at common law to an action in which nominal dam¬ 
ages at least could be recovered. This rule has been repudi¬ 
ated by the modern cases, the courts holding that no waste 
arises out of mere improvements unless the reversion is 
actually damaged in some definite way. The erecting of 
buildings, turning of waste land into cultivated fields, of pas¬ 
ture into meadow, and the like, was waste according to Coke 
and Blackstone though the pecuniary value of the property 


54 N. Y. 450; Wilson v. Edmonds, 
24 N. H. 517; Harvey v. Harvey, 
41 Vt. 377. 

15 In commenting on the phrase 
“non facient” of the Statute of 
Marlborough, Lord Coke said: “To 
do or make waste, in legal under¬ 
standing in this place, includes as 
well permissive waste, which is 
waste by reason of omission or not 
doing, as for want of reparation, 
as waste by reason of commission 
. . . and the same word hath the 
Statute of Gloucester, ch. 5, que 
aver fait waste, and yet is under¬ 
stood as well of passive as active 
waste, for he that suffereth a house 
to decay which he ought to repair, 
doth the waste.” Inst., II, 145; 7 
Bacon, Abr., 250. See list of early 
cases in England cited in Moore v. 
Townshend, supra, as holding that 
tenants for life or for years were 
liable for permissive waste. So uni¬ 
form was the accepted rule on this 
point that Blackstone said, (Bl., 
Comm., II, 283) : “. . . for about’ 
five hundred years past all tenants 


merely for life, or for any less es¬ 
tate, have been punishable or liable 
to be impeached for waste, both vol¬ 
untary and permissive; unless their 
leases be made as sometimes they 
are, without impeachment of waste.” 

See, however, Holdsworth, Hist. 
Eng. Law, III, 105, citing Y.B. 18 
Edward III, 42, where one of the 
attorneys referred to want of roof¬ 
ing as not amounting to waste. The 
question was at least raised here, 
but not decided, the tenant accept¬ 
ing the jury’s verdict finding waste; 
also citing as settling the law that 
life tenants were not liable for per¬ 
missive waste, Y.B. 22 Henry VI, 
Mich. pi. 34; Longo. Quinto, 100; 
10 Henry VII, Mich. pi. 3. These 
cases would seem to refer to need 
of repairs existing when the lease 
was made; but there has never been 
any doubt that the tenant was not 
bound to put the premises in repair 
if they were out of repair at the 
beginning of the term. See Walsh, 
Real Prop., 284. 


i88 


HISTORY OF ENGLISH AND AMERICAN LAW 


was increased, because it tended to impair evidences of title, 
making uncertain descriptions of the property contained in 
deeds or wills. 18 The reason for the old rule has disappeared 
with the use of the modern method of describing the land 
conveyed by metes and bounds, and the departure from the 
old rule by the modern cases is fully justified. 17 Mr. Holds- 
worth refers to a decision in Edward Ill’s reign which is in 
strict accord with the modern cases, one of the earliest, if not 
the earliest on record which touches this point. 18 

Tenancies “without impeachment of waste” go back at least 
to the Provisions of Westminster (1259), for such tenancies 
are expressly referred to in that statute. Instances of such 
tenancies go back to the earliest cases. 19 

The jurisdiction of equity over waste arose in two ways. 
1st. In all cases of legal waste, where further acts of waste 
were threatened, equity granted an injunction to restrain 
further acts of waste, part of the general jurisdiction of equity 
over torts. 20 2nd. In cases of so-called equitable waste, acts 
of destruction committed by tenants “without impeachment 
of waste” above referred to. Such tenants held under deeds, 
wills, or leases expressly permitting them to do what other¬ 
wise would be waste, since the instruments creating their 
estates made them dispunishable for any act of waste. At 
law, they could not be held for waste. In equity, they were 
enjoined, however, from any act of wilful destruction which 
was unconscionable in that it was inconsistent with any 
reasonable exercise of the right of absolute ownership. They 
might cut timber and sell it, open new mines, rebuild, remodel, 
change the character of the property, or do anything else 


16 Co. Litt., 53a; Coke, Inst., I, 
53; Bl., Comm., II, 282; 1 Lev. 309. 

17 See Doherty v. Allman, 3 App. 
Cas. 726; Pynchon v. Stearns, n 
Met. (Mass.) 304; Clark v. Holden, 
7 Gray (Mass.) 8; Clemenre v. 
Steere, 1 R. I. 272. 


18 Y.B. 14 Edward III, 170. 
19 Y.B. 12, 13 Edward III, 166; 
18, 19 Edward III, 540. 

20 See Chapter on Waste, Ames, 
Cases in Equity. 


INCIDENTS OF LEGAL OWNERSHIP 189 

which would be an act of reasonable ownership on the part 
of an owner in fee. But equity regarded it as inequitable that 
they should be permitted wantonly to destroy the inheritance 
without reason and not in the exercise of reasonable owner¬ 
ship, and therefore enjoined acts of wanton destruction of 
buildings or other improvements, cutting of ornamental tim¬ 
ber, small trees not yet fit for cutting, and the like. 21 Another 
instance of equitable waste arose in case of similar acts of 
destruction by an owner in fee subject to a conditional limita¬ 
tion over to another person in fee, as where land was given 
to A in fee, but if A should die without issue then to B in 
fee. B could, in a proper case of threatened unreasonable 
destruction by A, secure an injunction restraining A from 
such acts. B would have no action at law, since A as owner 
in fee could not be guilty of legal waste. 22 In both cases, the 
principle was the same. The acts threatened were unconscion¬ 
able, the law gave no relief, and therefore equity acted. The 
suggestion that equity construes the phrase “without impeach¬ 
ment of waste” differently from courts of law, so that in 
equity it will be construed as excluding unconscionable acts 
of destruction, is not necessary to explain equity’s intervention 
in the first class of cases. Equity is not dealing with legal 
waste, and does not hold that legal waste is committed in 
these cases, which would be the result if the agreement should 
be construed in the way suggested. It is not the function of 
equity to change rules at law, but to provide relief in cases 
where the law affords no sufficient or adequate remedy. It is 
enough that justice and equity demand that the succeeding 
owner in the two cases above discussed be given relief against 
unconscionable acts of destruction not based on any reasonable 
exercise of ownership by an owner in fee, and that the law 
affords no relief, to justify the interpostion of equity. 

21 Vane v. Lord Barnard, 2 Vern. 259; Clement v. Wheeler, 25 N. H. 
738; Rolt v. Somerville, 2 Eq. Cas. 361. 

Abr. 759; Stevens v. Rose, 69 Mich. 22 Turner v. Wright, 2 De Gex, 

F. & J. 234 


CHAPTER IX 


ESTATES IN EQUITY, USES AND TRUSTS 

§50. Further Development of Common Law Courts .—The 
history of the origin and early development of equitable estates 
is bound up inseparably with the development of the court of 
equity, or Chancery. Any rational account of the origin and 
development of Chancery as a court of equity must be pre¬ 
faced with a brief statement by way of summary of the de¬ 
velopment of the courts by which the law was administered 
during the thirteenth and fourteenth centuries, beginning 
where we left off in Chapter III. 

In Chapter III is outlined the development of the King’s 
Court as a court of law by which a single system of law 
national in scope, which we call the common law, displaced the 
old customary law of the local courts in all cases involving 
seisin or possession, and, in practical effect, in all cases in¬ 
volving better right to freehold estates, by its control over 
actions started by the writ of right. Its jurisdiction over all 
cases involving the freehold and also over tenancies for years 
has been made more clear by the preceding chapters dealing 
with real actions and new writs by which the interests of 
tenants for years were protected. We shall see in later chap¬ 
ters dealing with personal property and purely personal rights, 
how the common law of the King’s Court gradually assumed 
jurisdiction over personal actions, leaving to the local courts 
a purely local and constantly waning jurisdiction over the 
smaller personal controversies. 1 

During the thirteenth century, the King’s Court gradually 
assumed the form of two district courts, the Common Pleas 
and the King’s Bench. Before this separation, there was a 
■distinction clearly recognized between the court sitting term 


§50. 1 See §§77-79, post. 


ESTATES IN EQUITY, USES AND TRUSTS 


191 

after term at Westminster without the king, hearing common 
pleas (between subject and subject) and the court which fol¬ 
lowed the king, the king being present and taking part, coram 
rege, having jurisdiction over pleas of the crown as well as 
common pleas. During the minority of Henry III, there could 
be no court coram rege, and necessarily all cases were tried 
before what was later the Common Pleas, the King’s Court 
without the king. In 1237, shortly after Henry III became of 
age, separate rolls of the proceedings of each court were 
started, “Coram Rege” and “De Banco” rolls. 2 In 1272, the 
“Bench” or Court of Common Pleas had a separate chief- 
justice, and the separation must be regarded as complete from 
that time. 3 The Common Pleas had jurisdiction over all 
common pleas, real and personal actions of all kinds between 
subjects, whether started in that court or removed to it from 
the courts of the itinerant judges, and also a considerable 
measure of control over the local courts. Any case could be 
transferred from a county, hundred, or manorial court, by 
the writ of pone. By writ of false judgment, it could review 
judgments given in the local courts; and, by writ of error, 
it could exercise similar appellate jurisdiction over other in¬ 
ferior courts of record having by special charter or prescrip¬ 
tion a higher jurisdiction than the forty-shilling limit of the 
local courts. It also had the power, by writ of prohibition in 
certain exceptional cases, to keep inferior courts, including 
ecclesiastical, within their jurisdiction. 4 

In the King’s Bench, the king was in theory always present 
in person. By the reign of Henry IV, this had become a 
fiction. The court, not the king, rendered judgment. Its 
jurisdiction was universal and supreme. It had jurisdiction 
over all pleas of the crown, appellate jurisdiction over all 

2 Sel. Pleas of the Crown, Intro.. 8 Holdsworth, Hist. Eng. Law, I, 
xvi; Bracton’s Note Book, I, 56-59; 75. 

Poll. & Mait., Hist. Eng. Law, 1 ,177. * Coke, Inst., 99. 100; Holds¬ 

worth Hist. Eng. Law, I, 78. 


192 


HISTORY OF ENGLISH AND AMERICAN LAW 


other courts and judges in England, including the Common 
Bench, and the King’s Bench in Ireland. It also had juris¬ 
diction to inquire into and correct errors of public officers 
generally other than those of inferior courts, “tending to a 
breach of the peace or oppression of the subject .... or any 
other manner of misgovernment.” 5 Though the King’s Bench 
had no regular jurisdiction over civil cases arising between 
subject and subject, which belonged to the Common Pleas, it 
subsequently acquired a concurrent jurisdiction in these cases 
by means of a fiction. 6 

A larger and steadily increasing part of the actual trial 
work in cases in the King’s Court was done by the itinerant 
judges empowered by special commission to try all sorts of 
cases, criminal and civil, pleas of the crown and common 
pleas, throughout the country. The most important class 
were justices in eyre, who worked under a general commission 
giving them very broad powers, not only to try cases but 
also to inquire into the commission of crimes, and to inquire 
into and review the operation of local government, adminis¬ 
trative and financial, as well as judicial. They sat with a 
specially complete session of the county court in the county 
under survey, every town and borough being represented. 
All cases of the county pending in either part of the King’s 
Court or before justices of assize were transferred to this 
court. Sheriffs and coroners were required to submit their 
records since the last eyre, complaints against public officials of 
the county were heard, and a rigid inquiry through twelve 
knights or freemen selected to inform themselves with refer¬ 
ence to the matters contained in the articles of the eyre, was 
made as to all crimes and persons suspected of having com¬ 
mitted them since the last eyre. Most of the pleas of the crown 
were tried by the judges in eyre. This general inquisition 
into the affairs of the county, with the punishments and fines 

8 Coke, Inst., IV, 71-73; Holds- 6 See Holdsworth, id., I, 87-89. 
worth, id., I, 78-100. 


ESTATES IN EQUITY, USES AND TRUSTS 


193 


imposed, was intensely unpopular. The need for them in gov¬ 
ernment matters disappeared with the development of Parlia¬ 
ment, and means were found for displacing them with judges 
of assize acting on commissions limiting their powers to judi¬ 
cial business, so that they had practically disappeared by the 
reign of Edward III. 7 

Justices of assize were originally sent out on special com¬ 
missions to try cases involving seisin or possession of free¬ 
hold property. The assizes of Henry IPs reign, novel dis¬ 
seisin, mort d’ancestor, etc., have been explained heretofore. 8 
The term “assize” was applied to cases arising under these 
enactments of the king and his court; hence, the term “justices 
of assize” applied to the judges sent out to try them. Magna 
Carta required the issuance of such a commission in each 
county once a year. When later they were empowered by 
other commissions or by statute to hear other cases, civil and 
criminal, they still went by the old name. The Statute of 
Westminster II, ch. 30, provided that, unless the trespass was 
so great as to require special examination, the case should not 
be determined in the King’s Bench or Common Pleas, but a 
day and place for trial in the county should be named in the 
presence of the parties. Other pleas including those relating 
to land were brought under the same rule. “In all these 
cases, the sheriff was directed to summon the jury to West¬ 
minster only ‘nisi prius’ the justices of assize came into the 
county.” 9 Thus the justices of assize were empowered to 
try and determine all kinds of civil cases started in the King’s 
Bench and Common Pleas. By means of commissions, power 
to try criminal cases was also extended to justices of assize. 
They came to have a regular jurisdiction but little inferior to 
that of the Common Pleas and King’s Bench. 10 

The King’s Court in the broader sense as Council of the 
nation, down to Magna Carta was composed, as we have 


7 Holdsworth, id., I, 112-116. 

8 See §26, ante. 


9 Holdsworth, id., I, 117. 

10 Holdsworth, id., I, 118-122. 


194 


HISTORY OF ENGLISH AND AMERICAN LAW 


seen, of the great executive officers of state, the judges who 
later constituted the King’s Bench and Common Pleas, and 
such of the great tenants-in-chief of the kingdom, varying 
in number, as the king called to advise and act with him in 
matters of state. Except on extraordinary occasions, the’ 
number of this third class was not large, and was probably 
made up of those great men of the kingdom whose help and 
counsel the king desired, some because of their personal 
power in the state, others because of their special knowledge 
or other qualifications, still others because of their personal 
relations with the king. We have seen that this court was 
always a court of law for the great and powerful; that cases 
involving the interests of the king, or of his tenants-in-chief, 
were tried there; also that, where relief could not be had in 
the local courts because of lack of remedy or because of the 
power of the person complained of, the King’s Court would 
grant relief. In these cases, the smaller selected personal 
court of the king determined the disposition of the matter, 
no doubt as the king desired. 11 Magna Carta (ch. 14) pro¬ 
vided for a common Council of the kingdom with the power 
to pass on all questions of taxation. This Council was to be 
made up of the classes above named and all the tenants-in- 
chief, those answering the call having the power to bind all 
by their action. In matters of taxation and other legislation 
of first importance, the King’s Court included prior to Magna 
Carta all the tenants-in-chief, and they had been called in 
much the same way as that provided for in Magna Carta. 
Nevertheless, this provision was the first authoritative expres¬ 
sion of the country asserting its power in government as 
against the king, and was the forerunner of Parliament which 
was in process of development during the reign of Henry III 
and Edward I, and beyond. 

The king’s Council, at the beginning of the fourteenth cen- 


11 See §17, ante. 


ESTATES IN EQUITY, USES AND TRUSTS 


195 


tury, made up of the great officers of state, the judges, and an 
indefinite number of others whom the king chose to call, 
seems to be practically the same as the King’s Court as it was 
constituted on ordinary occasions during the century or more 
preceding the great charter. The Council was the “core and 
essence” of Parliament, which seems to have been a larger 
assembly of the Council reinforced with elected members from 
the boroughs and counties. 12 Up to this time, during the 
century preceding, the closest sort of relation existed between 
the King’s Bench, coram rege, and the Council; the Council 
was merely an enlarged coram rege, the coram rege a reduced 
Council. When the king called the officers of state and his 
other advisors of his Council to attend a session of the court 
it became the council. 13 This connection continued till near 
the end of the fourteenth century, and must be borne in mind 
when we consider the development of Chancery through the 
Council and its relation to the law courts. 14 Like the old 
King’s Court of the twelfth century, the Council tried impor¬ 
tant cases involving the king or between great men, or involv¬ 
ing new situations for which no remedy was provided by the 
regular tribunals. A large part of its work consisted in 
receiving and answering petitions. In answering these peti¬ 
tions, it acted as a council of “advice, preparation and direc¬ 
tion” rather than as a court, sending some petitions to the 
courts for disposition, some to the chancellor, others to the 
king, others asking for legislation being submitted to Parlia¬ 
ment and becoming statutes. 15 

£51. Development of Equity Jurisdiction in Chancery .— 
The chancellor was originally the secretary of state for all 
departments of the government. As keeper of the great 

12 Holdsworth, id., I, 171, 172. 15 Hale, Jurisdiction of the House 

13 Poll. & Mait., Hist. Eng. Law, of Lords, 25, cited Holdsworth, 

I, 178, 179. Hist. Eng. I,aw, I, 173. 

14 Holdsworth, id., I, 82, 83. 


196 HISTORY OF ENGLISH AND AMERICAN LAW 


seal, all treaties, royal grants, and other important govern¬ 
mental acts were passed on by him before the seal was affixed. 
After the disappearance of the office of chief justiciar, he 
became the most important personage in the English legal 
system, partly through his control over the issuance of all 
original writs by which actions were started in the courts, 
and partly because he was the chief law officer and most 
influential member of the Council. In the twelfth century 
and during the first half of the thirteenth, he had great 
discretionary power to issue new writs; and we have seen 
how the law developed during this period through the new 
remedies which were initiated in this way. No doubt, in 
the initiation of the more important new actions, he acted 
as a result of deliberative action by the Council; but, as chief 
law member of the Council, the responsibility for this develop¬ 
ment of the law must have been mainly his. His duties in 
issuing writs gradually became ministerial with the develop¬ 
ment of Parliament and the development of the courts and the 
law into a definite fixed system. The Statute of Westminster 
II (1285) took away from him and vested in Parliament 
power to create new remedies by issuing new writs, leaving 
him, however, some discretionary power to vary the old forms 
slightly so as to provide for relief in similar cases. 1 

His position as chief law member of the Council was the 
immediate cause which gave rise to his position as a court 
of equity, and which put him into control of the system of 
equity jurisdiction which gradually developed to supplement 
and to supply the deficiencies of the common law. We have 
already considered the nature of the Council as a supreme 
court exercising jurisdiction in cases of the greatest impor¬ 
tance, granting relief to petitioners where no adequate relief 
could be had at common law, either because of lack of 
remedy or because of the excessive power of the person 

§51. 1 Holdsworth, Hist. Eng. 

Law, I, 194-197. 


ESTATES IN EQUITY, USES AND TRUSTS 


197 


complained of. 2 These cases were commonly referred by the 
Council to the chancellor. By ordinance of the 8th year of 
Edward I, it was provided that petitions to the Council which 
touched the great seal or involved matters of grace should 
come first to the chancellor. “If the requests be so great or 
so much of grace that the chancellor and the others cannot 
grant them without the king, then they shall carry them with 
their own hands to the king to know his will. ,,s Petitions for 
grace made to the king alone were regularly referred to the 
chancellor during Edward I’s reign (1290-1307). 4 This con¬ 
tinued during Edward II’s reign, petitions relating to many 
questions, including wardship of minors, dower, and partition, 
being assigned to him, or to him and the judges, the judges 
of the law courts being also, as stated above, members of 
the Council. 5 The Statute 14 Edward III, 1 ch. 5, refers 
to the Chancery as a court. In 1349, an ordinance or writ 
of the king directed that all petitions relating to matters of 
grace from the king should be brought to the chancellor or 
keeper of the Privy Seal direct, and that only those petitions 
which could not be disposed of by them should be brought to 
the king. Thus matters formerly brought by petition before 
the king, or king and Council, as the depository of supreme 
power, asking for relief as a matter of grace because of lack 
or inadequacy of remedy at law, came to be assigned to and 
passed on by the chancellor as a matter of course. But in 
all these cases the chancellor acted, not as an independent 
court, though the tendency of growth was in that direction, 
but as the highest law member of the Council. Nevertheless 
the result was that, as a matter of actual fact, the equity 
which had been done in the past by king and Council in the 
granting of relief where an adequate remedy could not be 
had at law, had passed to Chancery and the chancellor. 

2 See §50, preceding. 4 Spence, Equitable Jur., I, 335. 

8 Stubbs, Const Hist. Eng., II, 5 For collection of cases in reign 
286; Reeves, Hist. Eng. Law, II, of Edward II (1307-1326), see 
289, 290. Campbell, Chancellors, 209 et seq. 


198 HISTORY OF ENGLISH AND AMERICAN LAW 


There are very few recorded cases decided by the chan¬ 
cellor during the fourteenth and the first half of the fifteenth 
centuries. Few cases of this kind appear in the Year Books. 
One case, 18 Edward IV, II, 4, reprinted in Digby’s History 
of the Law of Real Property, 342, was decided by the chan¬ 
cellor alone; another case, 7 Edward IV, reprinted in the 
same work, p. 341, was decided by the chancellor and the 
judges of the two law courts. These cases were of the latter 
half of the fifteenth century. Two cases appear in Select 
Cases in Chancery, where the chancellor dismissed the bills 
without the judges. He seems to have acted quite generally, 
however, in conjunction with the judges as law members of 
the Council. 6 The separation of Chancery from the Council 
in its jurisdiction was probably not clearly established before 
the beginning of the sixteenth century, a few years before 
the Statute of Uses was enacted. 

All of this illustrates the gradual, almost casual, develop¬ 
ment of Chancery as a court of equity during the fourteenth 
and fifteenth centuries. For a long time the chancellor acted 
as the leading law member of the Council, and his decrees were 
the decrees of the Council. Later, as his judicial duties were 
greatly increased by the referring to him of all matters brought 
before the Council involving questions of the common law 
and all questions of grace where adequate relief at law could 
not be had, Chancery took the form of a court gradually de¬ 
veloping a distinct jurisdiction; but the relation with the law 
courts was very close, as the common law judges, the other 
law members of the Council, sat with the chancellor and acted 
with him in hearing and determining many of his cases. At 
the end of the fifteenth century, Chancery had developed into 
a district court, though its relations with the Council con¬ 
tinued to be so close that the judgment of the court was 
usually that of the Council rather than of the chancellor. Its 

• Set. Cases in Chancery, XV, 

XX. 


ESTATES IN EQUITY, USES AND TRUSTS 


199 


purely equitable jurisdiction in giving relief where no ade¬ 
quate relief could be had at law, was gradually developing 
along lines which were becoming more clearlv defined. 7 The 
further history of Chancery as a court of equity, and its juris¬ 
diction over torts, contracts, and in cases of fraud, mistake, 
duress, redemption from penalties, etc., will be treated in a 
later chapter. The history of uses, involving the earliest 
cases of the exercise of this equitable jurisdiction by the chan¬ 
cellor, will now be dealt with. 

§52. Uses before the Statute of Uses .—Pollock and Mait¬ 
land assert that “a slight but unbroken thread of cases,” be¬ 
ginning not very long after the Conquest, establishes the fact 
of occasional conveyances to a feoffee to the use of another, 
giving as an example a man about to go on a crusade who 
conveys land to one whom he trusts for the use of his wife and 
children; that, in Bracton’s day and earlier, land was often 
conveyed to municipalities for the use of the Franciscan friars 
who were forbidden by the rules of their order to own 
property. 1 

During the reign of Edward III (1327-1377), the practice 
of conveying land to a third person as trustee for the use of 
another seems to have grown to considerable proportions. 
That the practice of conveying lands to be held in this way 
to avoid creditors had become quite prevalent at that time, is 
proved by the recitals in the Statute 50 Edward III, ch. 6, 
which restrained the practice by providing that, in such case, 
the creditors could proceed against the property “as if no 
such gift had been made.” Another purpose in creating such 
uses was for disseisors to convey the land to persons so power¬ 
ful that the true owner did not dare to attempt its recovery, 

7 Holdsworth, Hist. Eng. Law, I, ences are not given, the positive 
197-203. assertion of this authoritative work 

§52. 1 Poll. & Mait., Hist. Eng. may be safely accepted. 

Law, II, 228, 229. Though refer- 


200 


HISTORY OF ENGLISH AND AMERICAN LAW 


the Statute i Richard II, ch. 9, being directed against this 
practice. That conveyances to the use of religious houses to 
avoid the Statute of Mortmain were common, there can be 
little doubt; but this practice was finally restrained by the 
Statute 15 Richard II, ch. 5. 2 3 * * * * 

One of the most important purposes for the creating of 
uses was to enable the owner to dispose of his land by will. 
This he could not do at law, since wills of land were held to 
be void from the latter part of the twelfth century onward. 
By means of a conveyance to a trustee to such uses as might 
be named in his will, and thereafter making a will disposing 
of his personalty and providing therein for the persons to 
whom the trustee was to convey the land on his death, the 
owner found an effectual method of devising his land. Before 
his death the feoffor to uses would have possession and enjoy¬ 
ment of the land as before by virtue of a use in his own favor 
either expressly created in the feoffment to uses, or resulting 
back because not otherwise disposed of. On his death, the 
trustee would convey as directed by the will. After equity 
assumed jurisdiction, the trustee was compelled to permit the 
feoffor to occupy and enjoy the property as before until his 
death. On his death, the trustee was compelled by equity to 
convey to the persons so named in the feoffor’s will. 8 

During the Wars of the Roses, the danger of forfeiture for 
treason at law led many persons to convey their land to trustees 
for the use of the feoffor, so that their legal ownership might 
be changed to a use and be therefore freed from forfeiture 


2 Richard II’s reign was from 
1377 to 1399. 

3 “Now for the causes whereupon 

uses were put in practice, Mr. Coke 

in his reading doth say well that 

they were produced sometimes for 

fear and many times for fraud; but 

I hold that neither of these causes 
were so much the reasons of uses 


as another reason in the beginning, 
which was, that the lands by the 
common law were not testamentary 
or divisible.” Bacon, Reading on 
the Statute of Uses. Mr. Holds- 
worth, Hist. Eng. Law, I, 239, calls 
this statement a good summary of 
the causes of uses. 


ESTATES IN EQUITY, USES AND TRUSTS 


201 


for treason. This was undoubtedly a very prolific cause of 
the creation of uses. 

Since the law courts refused to recognize the use, it fol¬ 
lowed that it gave no legal right to the cestui que use, as the 
beneficial owner came to be called, and therefore he was free 
from the usual burdens attaching to legal ownership. His 
interest, except in cases coming under the statute above re¬ 
ferred to, could not be reached by his creditors; it was not 
subject to forfeiture for treason or felony, or to the incidents 
of tenure, including feudal dues and services, escheat and 
forfeiture. The trustee to uses permitted him, as beneficial 
owner, to have possession and full enjoyment of the use and 
profits of the land. His interest could be transferred without 
livery of seisin or other formality. He could also dispose of 
his use in land by will, avoiding the rule at law which made 
devises of real property void. Of course the cestui que use 
had no interest which the law would recognize or protect, and 
therefore, before the chancellor and Council had begun to 
recognize and enforce his rights, he was at the mercy of the 
trustee to uses, his only protection being the influence of the 
church upon the conscience and good faith of the trustee. 
Nevertheless the very clear advantages, fraudulent or praise¬ 
worthy, of this kind of interest led to the creation of uses to 
such an extent that, by the early part of the fifteenth century, 
they had become the usual method or kind of ownership of 
land, though as yet protected only by the obviously imperfect 
moral influence of the church upon the trustee. 4 

From the time of Henry III, the ecclesiastical courts were 
prevented by writs of prohibition from assuming jurisdiction 
in any cases involving land, 5 and therefore they were effec¬ 
tively prevented from assuming jurisdiction over uses. Uses 
were not as yet sufficient in number and importance to get 

4 Spence, Equitable Jur., I, 441, 5 Bracton’s Note Book, cas. 50, 

note c, cited in Digby’s Hist. Law 1893, cited Holdsworth, Hist. Eng. 
Real Prop., 320. Law, I, 239. 


202 


HISTORY OF ENGLISH AND AMERICAN LAW 


recognition, and a special writ at law, before the further ex¬ 
tension of original writs was closed by the development of 
the power of parliament and the enactment of the Statute of 
Marlborough in the latter half of the thirteenth century. The 
Statute 13 Edward I, ch. 24, provided that “whensoever from 
henceforth it shall fortune in the Chancery that in one case 
a writ is found, and in like case falling under like law and 
requiring like remedy is found none, the clerks of the Chancery 
shall agree in making the writ, or the Plaintiffs may adjourn 
it until the next Parliament, and let the cases be written in 
which they cannot agree, and let them refer themselves until 
the next Parliament, by consent of men learned in the law a 
writ shall be made, lest it might happen that after the court 
should long time fail to minister justice unto complainants.” 
The opportunity under this statute to give a remedy protecting 
uses and to grant relief in other cases later covered by the 
jurisdiction of equity was lost by the narrowness and techni¬ 
cality of the judges of the common law courts, who refused 
to grant relief for which there was no precedent. 8 Thus, 
before Chancery took a hand in the matter, the only protection 
of the cestui que use from a dishonest trustee was the moral 
influence of the church upon the conscience of the trustee. 

The first application on record to protect a use made to the 
chancellor was toward the end of Richard IPs reign (1377- 
1399). 7 In the following reign, early in the fifteenth cen¬ 
tury, the Commons asked that a law be enacted preventing 
breaches of trust by trustees to uses, showing that the chan¬ 
cellor had not yet secured an established jurisdiction over these 
cases. 8 Cases of uses in Chancery became more common dur¬ 
ing the balance of the fifteenth century. 9 In the earlier cases, 

8 See Digby, Hist. Law Real Prop. Digby, Hist. Law Real Prop. (5th 
(5th ed.), 324. ed.), 325. 

1 Sel. Cases in Chancery, 48. 9 Sel. Cases in Chancery, Nos. 

8 Spence, Equitable Jur., I, 443. 117, 118, 122, 135, 138, 143, 147, cited 

in Digby, ib., 325, note. 


ESTATES IN EQUITY, USES AND TRUSTS 


203 


the use was enforced as a mere personal obligation of the 
trustee which could not be enforced against his heir or alienee, 
the obligation being that of the trustee, not of his successor 
in interest. In Edward IV’s reign, it was held that the heir 
of the trustee was bound by the use exactly as the trustee was 
bound before his death . 10 Early in Edward IV’s reign, the 
court decided that any alienee of the trustee not a purchaser 
for value without notice was bound in the same way . 11 

This development amounted to the recognition of a use as 
an estate in the land, inheritable by the heir, subject to dis¬ 
position by will, and enforceable against the successors in in¬ 
terest of the trustee. About the same time, the chancellor 
began to apply the general principle that these new estates 
should be subject to the same incidents, so far as their dura¬ 
tion and inheritance was concerned, as corresponding legal 
estates. In the usual case, the eldest son of the cestui in fee 
inherited the use; in case of land held by gavelkind tenure, 
all the sons inherited in equal shares; if held in Borough 
English, the youngest son inherited, in each case as at law . 12 
The use would be an estate in fee, fee tail, for life or for years 
if so created, exactly like corresponding estates created at law, 
in the latter case the use for years passing to the personal repre¬ 
sentative of the cestui as a chattel real . 13 The chancellor re- 


10 Writs of subpoena issued 
against the heir of the trustee to 
enforce the use in Goold v. Pettit 
and Saunders v. Gaynesford, temp. 
Henry VI (1422-1461), Cal. II, pp. 
xxviii and xxxviii. But in Y.B. 8 
Edward IV (1461-1483), the Chan¬ 
cellor and justices held that sub¬ 
poenas would not lie against the 
heir of the trustee. In Y.B. 22 Ed¬ 
ward IV, 6, the Chancellor stated 
that records existed in Chancery of 
subpoenas against heirs of trustees 
to uses, and he disagreed with one 
of the judges that the rule was to 


the contrary. See note on these 
cases in Digby, Hist. Law Real 
Prop. (5th ed.), 326, 327. 

11 Y.B. 5 Edward IV, 7b. In these 
cases, we have the earliest expres¬ 
sion of the doctrine that one who 
takes the legal title without notice 
of any equity, holds it free of the 
equity. 

12 Breggeland v. Calche, Cal., II, 
p. xxxvi; Y.B. 5 Edward IV, 7b, 
cited Digby, Hist. Law. Real Prop., 
328. 

13 Digby, ib., 328. Mr. Williams, 
(Williams. Real Prop., 17th ed., 


204 


HISTORY OF ENGLISH AND AMERICAN LAW 


fused to follow the law, however, in the case of dower and 
curtesy, the husband or wife of the cestui taking nothing on the 
cestui’s death. The lord was not entitled to escheat on failure 
of the heirs of the cestui; the use could not be reached by the 
cestui’s creditors, though this was changed by statutes in the 
reign of Henry VII, which gave to creditors the right to pro¬ 
ceed against the use, and made it subject to certain feudal inci¬ 
dents . 14 It will be noted, therefore, that uses had become so 
important that they were recognized and controlled by statute. 

Uses differed from legal estates principally in the ways of 
creating and transferring them. The most usual way of 
“raising a use” was by transfer of seisin, or possession, to 
another as trustee for the cestui que use, viz., by feoffment or 
by fine. These uses arose, as the usual legal expression has 
it, by transmutation of possession. 

A use resulted back to the donor in case of a conveyance to 
a third person without consideration either of value or blood, 
no use having been expressly created in the conveyance in 
favor of any third person. The chancellor held that the donor 
intended a use in his own favor unless the contrary intent 
was expressed either by an explicit statement that a gift 
was intended or by the recital, at least, of some consideration 
of value, no matter how slight, or unless the conveyance was 
to a near blood relative. The Wars of the Roses had made 
the conveyance of land to trustees for the use of the donors 
so common that mere delivery or transfer of possession was 
not regarded as sufficient evidence of intent to convey abso¬ 
lutely unless a consideration of value was paid or recited, or 
close relationship of the feoffee to the feoffor showed the 


203), explains the development of 
these interests into estates as fol¬ 
lows: “As the feoffees were bound 
in equity to execute the estate at 
the will of cestui que use, he was 
considered in the Court of Chan¬ 
cery to be the true owner of the 


land, and to enjoy in equity such 
estate in the land as he would have 
had at law, if the estate had been 
executed to him by conveyance 
from the feoffees.” 

14 1 Henry VII, ch. 1; 19 Henry 
VII, ch. 15. 


ESTATES IN EQUITY, USES AND TRUSTS 


205 

consideration, in the sense of motive, which actuated the 
gift. 

Uses by bargain and sale, and by covenant to stand seised 
arose, in the first case mentioned, when the owner made a bar¬ 
gain to sell to another the land in question for a consideration 
of value which the purchaser had either paid or promised to 
pay, and in the second case, where the owner covenanted by 
instrument under seal to stand seised to the use of a near 
relative by blood. The chancellor implied a use in the first 
case from the recital of the consideration of value in the 
agreement to sell, the inference being that the bargainor was 
to stand seised for the benefit of the purchaser. In the absence 
of at least a recital of a consideration, there would be nothing 
but a mere bare promise to make a gift of the land, which 
equity would not enforce. In the case of a covenant to stand 
seised for a near blood relative, the close relationship supply¬ 
ing the motive for the covenant made it effective and enforce¬ 
able in equity. In either case, the result was that the owner 
by his bargain and sale or covenant to stand seised became 
himself trustee to the use of the bargainee or convenantee, a 
use arising in each case without bringing in a third person as 
trustee, and therefore without any transfer of seisin or posses¬ 
sion to any third person. These uses were said to arise 
without transmutation of possession . 15 

As already stated, uses could be transferred, after their 
creation, without livery of seisin or other formality of any 
kind. They could also be devised by will, equity enforcing 
the conveyance or devise. No doubt these attributes added 
to their attractiveness, contributing to the peculiar result that 
most of the land of England was held subject to uses for a 
considerable time before the Statute of Uses , 16 enacted in 

18 The foregoing discussion of the Sugden’s Gilbert on Uses, 1-125. 

creation of uses is based on Digby, See also, Williams, Real Prop., 

Hist. Law Real Prop. (5th ed.), (17th ed.), 202, 203, and notes. 

328-330, which in turn is based on 16 Bl., Comm., II, 137, 138. 


206 


HISTORY OF ENGUSH AND AMERICAN LAW 


1535. It is obvious that the chancellor assumed jurisdiction 
in these cases because justice and equity demanded it, there 
being no remedy at law; and they supplied the greatest and 
most important part of his equity business during the fifteenth 
century, during which century Chancery developed as a dis¬ 
tinct court. 17 

£53. The Statute of Uses .—The purpose of the Statute of 
Uses (1535) 1 was to convert uses into legal estates subject to 
all incidents attaching to estates at law, doing away altogether 
with the separation of beneficial ownership from the burdens 
and incidents of legal ownership. The purpose as expressed 
in the statute was to do away with uses in equity where no 
active duty was imposed on the trustee but where the sole 
purpose of the use was to separate the legal title from bene¬ 
ficial ownership, the trustee having no duty except to hold 
the legal title, permitting the cestui to have complete possession 
and enjoyment of the land as owner, and to convey the legal 
title as directed by the cestui. Therefore the statute had no 
effect on uses giving the trustee any active duty of manage¬ 
ment and control. If he was directed by the trust to collect 
the rents and profits and turn them over to the cestui, or to do 
any other affirmative thing which was the purpose of the use, 
the use as an equitable estate continued in the cestui as before, 
the legal title remaining in the trustee. Thereafter the active 
use was called a trust to distinguish it from inactive uses, 
converted by the statute into legal estates. The statute did 
not operate on a use for a term of years where the trustee 
was given a term for the use of another. These continued 
as equitable estates and were known as trusts for the same 
reason. This first or main purpose of the statute, to do away 
with inactive uses, was finally defeated altogether by the rule 
laid down in Tyrrell’s Case, 2 decided in the latter half of the 

17 See preceding section. 2 Dyer’s Rep. 155a. Reprinted, 

§53. 1 27 Henry VIII, ch. 10. Digby, (5th ed.), 375. 


ESTATES IN EQUITY, USES AND TRUSTS 


207 


seventeenth century. As a result of this case, it became 
settled law that, in any case of a use upon a use, for instance 
a gift to A to the use of B to the use of C, the first use was 
changed by the Statute into a legal estate, so that B, in the 
foregoing illustration, would take a legal estate, but the 
Statute could act but once, and therefore could not transfer 
the legal title from B to C, the use in favor of C remaining 
unaffected. Thus, at law, B became legal owner with full 
rights of enjoyment, though, by the express terms of the gift, 
he was to hold to the use of C, and C was without remedy at 
law. Of course this presented to Equity the same reason for 
granting relief that existed in the early cases of uses prior 
to the statute. The chancellor therefore enforced the use in 
favor of C as a trust, the term “trust” being applied to equit¬ 
able estates existing after the statute. It follows that a 
naked trust without any active duty in the trustee, could be 
created in any case, and the main purpose of the statute de¬ 
feated, by merely introducing an additional name in the gift 
by deed or will, creating a use upon a use, the beneficiary of 
the first use being the real trustee for the use and benefit of 
the beneficiary of the second use, who would be the real 
beneficiary of the trust. Thus the effect of the above gift 
was to make B trustee for the benefit of C, the cestui que 
trust. 3 

A second purpose of the statute was to do away with the 
practice of devising land by will by way of use, either by creat¬ 
ing uses by will which the trustee should execute after the 
death of the testator, as explained in the preceding section, 
or through the general powers of the cestui to dispose of 
equitable estates by will, the Statute converting them into 
legal estates which could not be devised. The power of 

3 Digby, ib., 370-372. No intelli- pose of the Statute by modern stat- 
gible reason was given or can be utes in many states is discussed 
given for the rule in Tyrell's case. hereafter, §55, post. 

The restoration of the original pur- 


208 


HISTORY OF ENGLISH AND AMERICAN LAW 


disposing of land by will through uses which had been enjoyed 
for over a century could not be so easily taken away perma¬ 
nently, and five years later Parliament was forced to enact the 
Statute of Wills 4 giving the right to devise by will all land 
held by socage tenure and two-thirds of the land held by 
military tenure. Thus the second principal purpose of the 
Statute of Uses met early defeat. 

The Statute of Uses had a revolutionary effect on the law of 
conveyancing, already explained in the chapter on convey¬ 
ancing, permitting conveyances of land inter vivos by mere 
delivery of a simple deed of bargain and sale or lease and 
release, without livery of seisin or change of possession. 5 
This matter has been sufficiently dealt with in the chapter 
referred to. 

The statute is also of the first importance in the history of 
the law because it permitted the creating of future executory 
estates, springing and shifting interests and powers, which 
were void at law before the statute was enacted. This topic 
belongs to the history of future estates which is the subject 
matter of a later chapter. 6 

§34. Trusts .—The origin of trusts has been sufficiently 
described in the preceding section in showing how and in 
what cases uses continued as estates in equity after the statute. 
We found that active uses involving an active duty on the 
part of the trustee, and uses for a term of years, the trustee 
taking as tenant for years only to the use of another, were 
not within the language of the statute, and continued as 
estates in equity; that, about a century and a half after the 
statute was enacted, it was decided that a use upon a use put 
the legal title by operation of the statutes in the cestui of the 
first use to be held to the use of the cestui of the second use, 
making inactive or passive uses as easily created as before, 

4 32 Henry VIII, ch. 1. See §87, 8 See ch. 7, §43, ante, 

post. 8 See ch. 12, §63, post. 



ESTATES IN EQUITY, USES AND TRUSTS 


209 


defeating the statute’s professed purpose of ending that kind 
of equitable estate. After the statute, these uses which con¬ 
tinued in equity as equitable estates came to be called trusts, 
and their development has resulted in the modern law of 
trusts. Those uses which were changed by the statute into 
legal estates have since been called uses. Therefore the term 
“use” applied to an interest created after the Statute of Uses 
means a legal estate created by conveyance under that statute; 
the term “trust” is merely a new name for the estate in equity 
which was known as a use prior to the statute. 

Most of the incidents which attached to uses before the 
statute was enacted have continued to apply to them under the 
new name of trusts since that time. Thus the trustee holds 
the legal title; the cestui que trust has the beneficial owner¬ 
ship. “Equity follows the law” so far as rules of law are 
applicable to trusts. Just as before the Statute of Uses, trusts 
are in fee, fee tail, for life or for years, as would be a corres¬ 
ponding estate at law, and subject generally to the same rules, 
and they descend to the heir or heirs in the same way. In 
general the same rules apply in equity as at law to remainders 
or reversions, but we shall see in the chapter on future estates 
that any executory future estate, void at law before the statute, 
was good in equity when created by way of use, and for that 
very reason could be created as a valid interest at law after 
the statute by deed of bargain and sale, or lease and release. 1 
They are subject to the rule against perpetuities, like corres¬ 
ponding estates at law. 2 The use of the word “heirs” is not 
necessary in creating a trust estate in fee, the intent to create 
a fee being expressed in some other way. Here the common 
law rule would defeat the trust, which is simply the expressed 
purpose or intent of its creator. But if nothing is expressed 
either way, a simple gift to the cestui without more creates a 
trust for life only. 8 

§54. 1 See §63, post. 213, citing Lewin, Trusts, 8th ed., 

2 See §68, post. 109; Holliday v. Overton, 15 Bea- 

8 Williams, Real Prop. (17th ed.), van 480, and other cases. 


210 


HISTORY OF ENGLISH AND AMERICAN LAW 


The Statute of Uses evidently taught the chancellors that it 
would not do to have ownership and responsibility for such 
ownership separated, for they pretty effectually removed the 
need of further legislation to overcome Tyrrell’s Case by mak¬ 
ing trusts subject to the same incidents and burdens as would 
attach at law. 4 Thus trust estates could be reached in equity 
by the cestuis creditors, and the right of escheat was recog¬ 
nized. Curtesy of the husband in trust estates of inheritance 
became established as in legal estates, unless contrary to the 
expressed intent of the person who created the trust. 5 The 
one conspicuous failure to follow the law was the refusal to 
recognize dower as attaching to trust estates. This has been 
corrected, as we have seen, by legislation.® 

Trusts have gradually developed into a great system of 
estates, constituting an extensive and important part of the 
modern law. An outline history of the entire field of law can¬ 
not include the function of the treatise on special divisions of 
the modern law, and therefore we must be content with a 
brief summary of the different kinds of trusts and the more 
important incidents attaching to them, as they have developed 
since the Statute of Uses. 


§55. Modern Trusts , Express and Implied .—Express trusts 
arise when created by the expressed intent of the parties. Im¬ 
plied trusts are created by equity in order that justice may be 
done between the parties. 

The difference between active and passive express trusts 
has been discussed in the preceding section. In the United 
States, statutes provide quite generally that passive trusts 


4 Williams, ib., 210, citing Lewin, 
674, 684, 853. That the trust binds 
the heir, devisee, and grantee who 
is not a purchaser for value and 
without notice of the trust, exactly 
as in the case of a use, is, of course, 
manifest. 


5 Williams, Real Prop. (17 ed.), 
213, 214; Digby, Hist. Law Real 
Prop. (5th ed.), 372, 373; Kent, 
Comm., IV, 290-312, II and Trusts. 
8 See §30, note 20, ante. 


ESTATES IN EQUITY, USES AND TRUSTS 


211 


shall be void as such, the instrument attempting to create the 
trust being made to act as a conveyance to the person named as 
cestui } These statutes do away with the rule of Tyrrell’s 
Case, and accomplish the original purpose of the Statute of 
Uses. Where an active trust is created to continue, for in¬ 
stance, in favor of the testator’s children until the youngest 
attains the age of twenty-one, whereupon the trustee is directed 
to convey the property in fee, the general rule in England 
and the United States is that title does not pass to the remain¬ 
derman on expiration of the active trust in favor of the child¬ 
ren, until the conveyance is made by the trustee. 2 In New 
York and a few other states, by virtue of the statute, it is 
held that title passes to the remainderman ipso facto on the 
expiration of the trust, though no conveyance has been made. 3 
If no provision is made for a conveyance in such case, the 
trust ceases in most jurisdictions, and title vests in the re¬ 
mainderman without a conveyance by the trustee. 4 

Since the Statute of Uses and the Statute of Wills resulted 
in giving to estates at law most of the advantages which were 
formerly possessed by uses alone, there ceased to be very 
much legitimate occasion or desire for inactive trusts; and, 
as trusts were brought under the burdens affecting legal es¬ 
tates, the advantages of equitable ownership as a means of 
avoiding legal responsibility were proportionately diminished. 


§55. 1 N. Y. Real Prop. L., §§92, 
93; Ind. Rev. St., ch. 28; Stim. Am. 
Stat. L., I, §§i/Oi, 1703; Pom., Eq. 
Jur., II, §§1003, 1004; Chaplin, Exp. 
Trusts, §518. This is the general 
rule in the United States though a 
few cases recognize Tyrrell’s Case 
as law, a passive trust arising in 
the case of a use upon a use. Guest 
v. Farley, 19 Mo. 147. In Price v. 
Sisson, 13 N. J. Eq. 168, though the 
court declared that a use upon a 
use is the usual form in which a 


trust is created, it nevertheless 
recognizes the rule that where no 
active duty is imposed on the trustee 
no trust arises, and the legal and 
beneficial title vest in the cestui. 

2 England v. Slade, 4 T. R. 682; 
Obert v. Bodine, 20 N. J. L. 394; 
Reeves, Real Prop., I, 462. 

8 N. Y. Real Prop. L-, §§92, 93; 
2 Mich. Comp. L. (1857), p. 824; 
Hopkins v. Kent, 145 N. Y. 363. 

4 Perry, Trusts, I, ch. 17. 


212 


HISTORY OF ENGLISH AND AMERICAN LAW 


The result has been that most express trusts have been, since 
the statute, of the active kind, created for some legitimate 
affirmative purpose; the simple inactive trust in which the 
trustee has a nominal legal title solely for the purpose of 
separating title from ownership, has been the exception rather 
than the rule, reversing the situation as it was prior to the 
statute. 

Before the Statute of Frauds, trusts could be created by 
parol without formality. That statute, section 7, provided 
that “all declarations or creations of trusts or confidences of 
any lands, tenements, or hereditaments shall be manifested 
and proved by some writing” signed by the person creating 
the trust, or by his will; otherwise they were void. All im¬ 
plied trusts were expressly excepted by the eighth section. 
The ninth section requires that grants or assignments of 
trust estates in land shall be in writing. The statute does 
not apply to personal property, though trusts for terms of 
years are included. 5 The trust need not be created by writing 
—it need only be manifested and proved by a writing which 
may be made after the creation of the trust, and which need 
be in no formal shape, provided it sufficiently expresses tHe 
trust, trustee, beneficiary and property affected. 9 

Implied trusts, implied by equity in order that justice may 
be done between the parties, there being no expressed intent 
to create a trust, are divided into two classes, resulting and 
constructive trusts. Resulting trusts are those implied by 
equity because the parties may fairly be presumed to have 
intended the trust, though they have failed to express it in 
any form; while those arising without attendant circumstances 


*29 Charles II, ch. 3, §§7, 8, 9; 
Matter of Carpenter, 131 N. Y. 86; 
Hirsh v. Auer, 146 N. Y. 13, 19; 
Perry, Trusts, I, §86. In the United 
States, this statute has been gen- 
rally followed. N. Y. Real Prop. 
L., §242; Ames, Cases Trusts, I, 


176; 1 Stimson, Am. Stat. L., §1710. 

6 Ames, Cases Trusts, I, 178; 
Perry, Trusts, §§82, 84, 85. The 
same holds true of assignments. 
Wright v. Wright, 1 Ves. Sr. 109; 
1 Spence, Equitable Jur., 506. 


ESTATES IN EQUITY, USES AND TRUSTS 


213 


from which such intent may be presumed, but implied by 
equity in order that justice may be done between the parties, 
are called constructive trusts. 7 

The most important class of resulting trusts are those 
arising where one man takes title to property and another 
pays the consideration. At law, the man paying the consid¬ 
eration has no interest in the land. Equity treats him as the 
real or beneficial owner, the presumption being that no gift 
was intended, and that the man taking title was to hold for 
the man paying the purchase price. Though no trust is ex¬ 
pressed, equity implies one in order that justice may be done. 
If it appears that a gift or a loan was intended, or an express 
trust with different purpose is declared in writing, no such 
trust will be implied since obviously not intended. 8 A con¬ 
veyance to a third person with intent to defraud the creditors 
of the man paying the consideration, does not give rise to a 
resulting trust in his favor, as equity will not act in favor of 
a wrongdoer in order to save him from the legal effects of 
his wrongful act. 9 

Another important kind of resulting trust arises in favor 
of the grantor when property is given to a trustee as such but 


7 Perry, Trusts, I, §§85, 86, 124, 
166. 

8 Perry, Trusts, I, §126, 133, 139, 
140; White & T., Leading Cas. Eq., 
I, 314, and notes; Dyer v. Dyer, 2 
Cox, 92; McGowan v. McGowan, 
14 Gray (Mass.) 119; Bermger v. 
Lutz, 188 Pa. St. 364; Jacksonville 
Nat. Bank v. Beesley, 159 Ill. 120; 
Wheeler v. Kirtland, 23 N. J. Eq. 
13, 22. 

Where the person paying the con¬ 
sideration is the husband or father 
of the person taking title, no trust 
results, since the obligation to sup¬ 
port or the close relationship may 
be taken as the motive of the trans¬ 


action. Perry, Trusts, I, §143; Dyer 
v. Dyer, 2 Cox 93; Gorly v. Gorly, 
157 Ill. 335 Kern v. Howell, 180 Pa. 
St. 315; Hallenbeck v. Rogers, 57 
N. J. Eq. 199. If it be established 
by clear affirmative evidence that no 
gift was intended, a trust will be 
implied in favor of the husband or 
father. Smithsonian Inst. v. Meech, 
169 U. S. 398; Jaquith v. Mass. 
Bapt. Conv., 172 Mass. 439, and pre¬ 
ceding cases. 

9 Proseus v. McIntyre, 5 Barb. 
(N. Y.), 424; Cutler v. Tuttle, 19 
N. J. Eq. 549 , 562. 

For statutes in New York and 
other states attempting to do away 


214 


HISTORY OF ENGLISH AND AMERICAN LAW 


the trust fails because it is illegal or in violation of some rule 
of law like the rule against perpetuities, or because not prop¬ 
erly declared, or because the beneficiary is not named, or 
dies. 10 Also a trust results in favor of the grantor or heir of 
the testator or other person who would be otherwise entitled, 
when trust property is left in the hands of the trustee after 
the trust has been fully administered and its purposes accom¬ 
plished, it being obvious that the trustee was not to take as 
beneficial owner. 11 

A conveyance to a third person without consideration of 
money or blood, gave rise to a resulting use, as we have seen, 
prior to the Statute of Uses. 12 The effect of the Statute of 
Uses upon this use was to convert it into legal ownership in 
the grantor, making the deed ineffective for any purpose. 
No trust could result in case of a conveyance under the Stat¬ 
ute of Uses, as the creation of a use to be operated on by the 
statute was expressly provided for. 13 Under the modern 
cases, no trust results from the mere absence of consideration, 
the obvious intention to make a gift, completed by the con¬ 
veyance, being recognized and given effect. The old rule, 
still apparently followed in England and some of the states, 
undoubtedly grew out of the fact that conveyances to the 
use of the grantor were so common before the statute that 
the apparent intention to make a gift, naturally to be inferred 
from the conveyance without consideration, was overcome; 
and, unless a consideration was paid or recited, the intent 
was presumed to be that an inactive trust should arise. To- 


with resulting trusts of this class 
except for the benefit of creditors 
or in case of fraud on the part of 
the person taking title, see N. Y. 
Real Prop. L., §94; Stimson, Am. 
Slat. L., §1706; Walsh, Real Prop., 
389, and cases cited. 

10 Hill, Trustees, 113, 114; Perry, 
Trusts, I, §§150-160; 1 White & T., 


Leading Cas. Eq., I, 1171, notes; 
Walsh, Real Prop., 390, note ri. 

11 Morice v. Bishop of Durham, 
9 Ves. 399, 10 Ves. 522; McElroy 
v. McElroy, 113 Mass. 509; Hop¬ 
kins v. Grimshaw, 165 U. S. 342. 

12 See §52, ante. 

13 Perry, Trusts, I, §162; Coffey 
v. Sullivan, 63 N. J. Eq. 296. 


ESTATES IN EQUITY, USES AND TRUSTS 


215 


day this situation has disappeared, and the natural inference 
of a gift should prevail. 14 

Constructive trusts arise in cases of fraud, where a fiduciary 
fraudently gets title to his principal’s property, or where any 
person gets title to the property in question by fraud. The 
fraudulent party is compelled to reconvey the property and 
account for it as trustee though intent so to charge himself 
is entirely absent. 16 

Where heirs or devisees fraudulently prevent the owner 
from conveying or devising property to others, they will sub¬ 
sequently take the land impressed with a trust in favor of 
the persons who otherwise would have received it. 16 Any 
acquisition of his principal’s property by a trustee, agent, or 
other fiduciary, is presumptively fraudulent, giving rise to a 
constructive trust unless it appear affirmatively that the fidu¬ 
ciary acted in entire good faith without injury to or the taking 
advantage of his principal. 17 A conveyance in fraud of the 
grantor’s creditors, to one not a purchaser for value, without 
notice, makes the grantee a trustee for the creditors. 18 

A contract for the sale of real property enforceable by 
specific performance in equity gives rise to a trust of a peculiar 
nature created by equity in order to give the purchaser full 
protection in his rights prior to the conveyance to him of the 


14 Goldsmith v. Goldsmith, 145 
N. Y. 313; Fitzgerald v. Fitzgerald, 
168 Mass. 488; Lovett v. Taylor, 
54 N. J. Eq. 311. Supporting the 
old construction: In re Duke of 
Marlborough, 2 Ch. 133; Griffen v. 
Taylor, 139 Ind. 573. See Lewin, 
Trusts (9th ed.), 151; Story, Eq. 
Jur., §1197. 

15 Bacon v. Bronson, 7 Johns. Ch. 
(N. Y.) 194; Ahrens v. Jones, 169 
N. Y. 555 - 

18 Dyer v. Dyer, White & T., 
Leading Cas. Eq., I, 352; Oliffe v. 
Wells, 130 Mass. 221, 224; Williams 


v. Vreeland, 29 N. J. Eq. 417. If 
the devise or bequest is secured on 
a promise to hold in trust for an¬ 
other, a trust to that effect will be 
imposed. Amherst College v. Rich, 
151 N. Y. 282; Fairchild v. Edson, 
154 N. Y. 199; Dowd v. Tucker, 41 
Conn. 197. Walsh, Real Prop., 394, 
note. 

17 Perry, Trusts, I, §§194-210; 
Fox v. Mackreth, White & T., 
Leading Cas. Eq., I, 188, and notes. 

18 Ellison v. Ellison, W’hite & T., 
Leading Cas. Eq., I, 188, and notes. 


216 HISTORY OF ENGLISH AND AMERICAN LAW 

legal title. The purchaser is entitled to specific performance 
of the contract; and, as cestui que trust, he may get an injunc¬ 
tion restraining any act of destruction on the part of the 
vendor. For all other purpose, the vendor holds as owner 
in his own right, being entitled as owner to the possession, 
use, and income from the property. Nevertheless, by the pre¬ 
vailing cases, the purchaser is held to be the real or beneficial 
owner; so that the loss falls on him instead of the vendor in 
the absence of an agreement to the contrary, in case of de¬ 
struction of buildings on the premises by fire or other casualty 
not due to the negligence or other wrong of the vendor, and 
the vendee must accept a conveyance of the damaged property 
without reduction of the purchase price. 19 The right of speci¬ 
fic performance of the contract would seem fully to protect 
him in all respects without going to the extreme length of 
holding that he is real owner for the purpose of loss by fire 
or the like. His right is limited to specific performance, with¬ 
out right to the possession and income, subject to payment of 
the purchase price—purely contractural. Causing the loss to 
fall on him in effect changes the normal effect of the contract, 
since the loss would fall on the vendor in such case, making 
him unable to carry out his contract, in cases of contracts to 
sell personal property. This undue extension of the implied 
trust works a positive wrong to the vendee in violation of 
the rights in contract which he otherwise would have, a result 
of purely technical reasoning which cannot be supported by 
the general principles of equity. 

19 Lewin, Trusts, 148; Sewell v. 

Underhill, 197 N. Y. 168. 


CHAPTER X 


CO-OWNERSHIP 


§56. Origin and Development of Joint Tenancies, Ten¬ 
ancies in Common and Coparceny. —Joint tenancies and es¬ 
tates in coparceny existed as early as Bracton’s time, since 
Bracton spoke of coparceny 1 and also of joint tenants seised 
“per my et per tout/’ 2 The right of partition as between 
coparceners was recognized by Bracton, who distinguished 
coparceny from joint tenancy by the fact that joint tenants 
could not have partition except by their mutual consent. 3 
The right of partition was extended to joint tenancies for the 
first time by statute during the reign of Henry VIII. 4 The 
incident of survivorship characterizes joint tenancies from the 
beginning of their known history; and they were used on 
that account in Bracton’s time to defeat the lord’s right to 
relief and wardship. 5 Britton regarded coparceny as also sub¬ 
ject to survivorship; but, by Edward Ill’s reign, it was settled 
to the contrary. 6 

Tenancies in common were recognized in Edward I’s reign. 7 


§56. *F. 72. 

2 F. 13; Britton, I, 232, 233. 

8 Fols. 72, et seq., 443b. See also 
Y.B. 30, 31 Edward I, 324. 

4 Statute 31 Henry VIII, ch. 1. 

5 Poll. & Mait., Hist. Eng. Law, 
II, 20. Lands were sometimes set¬ 
tled on a father, mother, son, and 
the heirs of the son with that pur¬ 
pose. Coke, Inst., II, no. See Stat. 
Marlb., ch. 6, for legislation de¬ 
signed to protect the interest of the 
lord. Pollock & Maitland cite a 
case, Cal. Geneal., II, 650, where a 
tenant-in-chief asked for a license 


to convey to a friend, he to take 
back an estate limited to himself, 
his wife, and their heirs, it appear¬ 
ing that he had an infant son. An 
inquest found this would be to the 
king’s damage, as he might lose a 
wardship. Id., 20, note 2. 

8 Y.B. 14, 15 Edward III, 34; 17, 
18 Edward III, 174. 

7 Y.B. 32, 33 Edward I, 152. 
"Beresford, C. /.—After the parti¬ 
tion made as you say, cannot they 
again hold jointly as they did be¬ 
fore? Royston .—The law does not 
allow it; it would prejudice the 


218 


HISTORY OF ENGLISH AND AMERICAN LAW 


The distinction between them and joint tenancies was made 
clear in cases decided in 1340 8 and 1365* as pointed out by 
Professor Holdsworth. 10 

The law governing coparceners, joint tenants, and tenants 
in common, was gradually evolved by the courts during the 
fourteenth and fifteenth centuries; so that, by the time of 
Littleton, it was substantially as it is today except as modified 
by later statutes. A joint tenancy arises in any case where 
two or more persons acquire property jointly by purchase; that 
is, by deed or will or by disseisin and adverse possession—in 
any way other than by inheritance. 11 The right of survivor¬ 
ship, viz., that on the death of a tenant his interest does not 
pass to his heirs but survives to the other cotenant or coten¬ 
ants, the ultimate survivor taking an estate in severalty in fee, 
arose out of the fictitious unity which the law created in these 
cases, no doubt to maintain unity and simplicity of the tenure 
by which the land was held from the lord. The tenants 
were treated as though they together constituted one person, 
which fictitious person was the owner of the property. That 
fictitious person continued in the survivors on the death of a 


lord: for if two persons enfeoffed 
jointly in fee simple make partition 
between them, one portion will 
sooner escheat to the chief lord 
then survive to the other joint 
feoffee.” See also Y.B. 2, 3 Ed¬ 
ward II, 144; Holdsworth, Hist. 
Eng. Law, III, 109, notes 7, 8. 

8 Y.B. 14 Edward III, 198, 200. 

® Y.B. 38 Edward III, Mich., 26b. 

10 Holdsworth, Hist. Eng. Law, 
III, 109. 

11 Litt., §§277, 280. The same 
general rules, including survivor¬ 
ship, apply to joint ownership of 
tenancies for years and chattels. 
Litt., §281. Also to debts owed to 
two or more persons jointly: on 


the death of one creditor the sur¬ 
vivor or survivors take the entire 
debt. Litt., §282. As Mr. Digby 
points out, History Law Real Prop. 
(5th ed.), 277, note 2, there is a 
well established exception in the 
case of copartnership property, the 
partners holding as tenants in com¬ 
mon, subject in equity to the rights 
of the firm, though all the unities 
are present. Also in the case of 
mortgages, though the legal title to 
the mortgaged property held by 
them passes by survivorship, the 
survivor holds the deceased co¬ 
mortgagee’s share as trustee for his 
personal representative. 


CO-OWNERSHIP 


219 


tenant; so that the entire estate continued in the survivors as 
the remaining constituent members of the unity, until the 
death of the last survivor. Necessarily the three unities— 
(1) of time, that the parties took at the same instant; (2) of 
title, that they took by the same deed or will or by the same 
disseisin; (3) of interest, that they took by community of 
interest, the interest of each identical in all respects with that 
of any other—had to be present, because title was acquired by 
the unity, and necessarily, therefore, by a single act of trans¬ 
fer of title at a single moment of time, each tenant holding by 
way of community of interest, and enjoying the same identical 
interest in the property. 12 If the gift to the tenants was 
expressly to them as tenants in common, they took as such 
free from survivorship, the interest of a tenant in common 
passing on his death to his heir or heirs, or under his will, as 
the case might be. That the idea of a fictitious unity rather 
than the four unities is the basis of a joint tenancy is clearly 
shown by a gift to A and B, each to take an undivided one- 
half interest in the land. This creates a tenancy in common, 
though the four unities are all present, because each takes a 
distinct and separate though undivided one-half interest, 
amounting to an express provision that each is to hold as a 
tenant in common and not by the peculiar community of 
interest arising out of the unity which characterizes a joint 
tenancy. 13 

Though joint tenants hold as one “per tout” as far as third 
persons are concerned, they also hold “per my,” that is as 
separate individuals, as between themselves. As the interest 
of each is a vested estate in property, it may be conveyed; and 
the effect of the conveyance is to break the unities and sever 
the joint tenancy, so far as the interest so conveyed is con- 

12 See preceding note, also Wil- ley, 70 N. Y. 512; Shattuck v. Wall, 
liams, Real Prop. (17th ed.), 164- 174 Mass. 169; Mason v. M. E. 

166. Church, 27 N. J. Eq. 47 - 

18 Litt., §298; Stevenson v. Les- 


220 


HISTORY OF ENGLISH AND AMERICAN LAW 


cerned. The grantee holds as tenant in common. If there 
were only two tenants originally, the purchaser and the other 
cotenant hold as tenants in common, the joint tenancy or 
unity being entirely severed; if there were more than two, 
the purchaser of the interest conveyed holds, of course, as 
tenant in common, since he is a stranger to the unity, not 
taking by the same -deed, nor at the same time; but the re¬ 
maining joint tenants still continue to hold their original 
interests as joint tenants between themselves, subject to sur¬ 
vivorship, the unities between them continuing as before. 14 
A mortgage of his interest by a joint tenant, being at common 
law a conveyance of his share by way of security, converts 
the share mortgaged into a tenancy in common, and the satis¬ 
faction or discharge of the mortgage without foreclosure does 
not bring it back again into the joint tenancy. 15 It has been 
held in one case at least that, under the modern law of mort¬ 
gages prevailing in most of the states, a mortgage does not 
transfer title to the mortgagee, but rather creates a lien in his 
favor as security for the payment of the mortgage debt; and 
that, therefore, the unities are not broken by it, and the joint 
tenancy continues in the absence of a conveyance under fore¬ 
closure, the interest of the tenant mortgagor passing by sur¬ 
vivorship on his death to the other joint tenant, but subject 
to the lien of the mortgage. 16 This case cannot be sustained; 
for, if a mortgage is nothing more than an instrument creat¬ 
ing a lien, the lien is necessarily subject to the cotenant’s right 
of survivorship, as judgment and other liens are, and would 
be wiped out thereby on the death of the tenant mortgagor. If 
the mortgage is not destroyed by survivorship, then, on this 
lien theory, we should be confronted with a joint tenancy 
where the right of survivorship of one of the tenants will 

14 Litt., §292; Co. Litt., 186a; Cas. Abr., I, 293; Lessee of Simp- 
Williams, Real Prop. (17th ed.), son v. Ammon, 1 Binney (Pa.) 175. 
168. Wilkins v. Young, 144 Ind. 1. 

15 York v. Stone, 1 Salk. 158, Bq. 


CO-OWNERSHIP 


221 


attach to the interest of the other free and clear, while his 
cotenant’s right of survivorship in the first tenant’s interest 
will be subject to a mortgage lien which may be for its full 
value, making his right of survivorship valueless, a long way 
from the complete unity or identity of interest which the law 
requires. On the other hand, if survivorship will destroy the 
mortgage lien in this case, it will mean that, in practical effect, 
a joint tenant cannot mortgage his interest at all, since no 
one would accept a security which might be defeated the next 
day by the death of the mortgagor; an impossible result, since 
it would be entirely unreasonable for the law to permit a 
joint tenant to convey his interest as he pleases, yet deny him 
the right to pledge it as security for a debt. The true solu¬ 
tion is that a mortgage is, as it always has been, in form and 
substance, a conveyance of the technical legal title; that the 
meaning of the courts in declaring that the mortgagor remains 
owner and the mortgagee has a lien is that the mortgagor is 
the real or beneficial owner while the mortgagee has security 
only, adopting the equity view of a mortgage and disregard¬ 
ing the technical legal title in any case where the technical 
legal title would not be material in equity, this being an in¬ 
stance of the merger of law and equity which has gone so far 
in the law of mortgages. But, in determining the question 
of the effect of a mortgage as breaking a joint tenancy, we are 
dealing with a technical common law estate; the legal title is 
directly involved; a mortgage is in fact something more than 
a mere lien like a judgment; it does in fact amount to a pledg¬ 
ing of the property as security, and therefore the technical legal 
title passes, breaking the unities and converting the interest 
mortgaged into a tenancy in common. 17 Joint tenants may 


17 See Walsh, Real Prop., 406-409. 
Since joint tenants were seised as 
members of the unity ‘per tout/ 
each was supposed to be seised of 
the entire property, so that one 
could not convey by feoffment his 


interest to the other or others. 
They were already seised. There¬ 
fore a deed of release extinguish¬ 
ing the right of the tenant was the 
appropriate form in such case. The 
word “heirs” to release such an in- 


222 


HISTORY OF ENGLISH AND AMERICAN LAW 


convert the estate into a tenancy in common by mutual deeds. 1 * 
Survivorship prevents inheritance by his heirs or disposition 
by will of the interest of a joint tenant. 19 As it is not an 
estate of inheritance, the right of dower does not attach to it. 20 
Of course, after the joint tenancy has become an estate in 
severalty in the last surviving joint tenant, or a tenancy in 
common by conveyance made by the individual tenants, it may 
be inherited or devised, and dower will attach as in other cases 
of estates in severalty or in common. It goes without saying 
that joint estates as well as tenancies in common may be for 
life or for years as well as in fee. A conveyance or devise to 
several persons, two of whom were husband and wife, gave 
to the husband and wife only one share between them, they 
counting only as one person and taking that by the entirety. 20 * 
This will be discussed in §58, post. 

Tenancies in common arose at common law where one or 
more of the unities of time, title, or interest were lacking. 
The fourth unity, viz., of possession, is the only one essential 
to this tenancy. Their interests may differ in duration, as 
when one tenant has a fee, the other a life estate; or in 
quantity, as where one has an undivided one-fourth, another 
an undivided one-half. They arose also where joint tenancies 
were converted into tenancies in common by individual alien¬ 
ation of joint tenants’ separate interests, and when expressly 
created as such. 21 When a man seised in fee conveyed a 
share to another, they held in common, the unities of time 
and title and possibly of interest being lacking. 22 A convey¬ 
ance to two men and the heirs of their two bodies makes them 
joint tenants during their lives; and, on the death of the 

terest in fee was not necessary for Duncan v. Forrer, 6 Binney (Pa.) 
the same reason. 192. 

18 Colson v. Baker, 42 Misc. 20 Babbitt v. Day, 41 N. J. Eq. 

(N. Y.) 407- 392. 

19 Williams, Real Prop. (17th 20a Litt., §291. 

ed.), 168; Bl., Comm., II, 182; 21 Litt., §§292, 298. 

22 Litt., §299. 


CO-OWNERSHIP 


223 


survivor, the heirs of each inherit as though they had been 
tenants in common. 28 But, if such a gift is to a man and 
woman who may marry, they will hold a joint tenancy in 
fee tail special; on the death of the survivor, if they have 
married and children survive, the children will take by in¬ 
heritance. 24 

Coparceners are female heirs of an owner in fee, where no 
male heir survives. As stated above, they take separate in¬ 
terests like tenants in common, which may be conveyed, de¬ 
vised, and inherited in exactly the same way, free from the 
incident of survivorship. These estates seem to differ from 
tenancies in common only in the mode of their creation, and 
historically by the fact that the tenants could enforce partition 
prior to the Statute 31 Henry VIII, ch. 1, which extended the 
same right to joint tenants and tenants in common. The 
name “parceny” seems to have been derived from the fact 
that these cotenants alone had this right prior to the statute 
just referred to. 25 In the United States, all children or other 
heirs of equal degree inherit as tenants in common. Copar¬ 
ceny does not exist here since primogeniture is not recognized. 

£57. The Modern Lazo of Joint Tenancies and Tenancies 
in Common .—By statute in most if not all of the states, it is 
provided that, unless the deed or will creating the estate ex¬ 
pressly declares that the cotenants shall hold as joint tenants, 
a tenancy in common arises. 1 In some states, statutes accom¬ 
plished the same result by doing away with survivorship unless 
it is expressly provided for in the instrument creating the 
estate. 2 Trustees have always held as joint tenants in order 

28 Litt, §283. coparceners by custom, subject to 

24 Co. Litt., 20b, 25b; Bacon, Abr., the same rules. Litt., §265. 

Joint Tenants. §57- 1 N. Y. Real Prop. L., §66. 

26 Williams, Real Prop. (17th See cases, Walsh, Real Prop., 402, 
ed.), 257, 258; Bl., Comm., II, 187; note 7. 

Litt., §241, §254. Sons inheriting 2 Walsh, Real Prop., 403, note 7. 
gavelkind lands in equal shares are 


224 


HISTORY OF ENGLISH AND AMERICAN LAW 


that the legal title may survive in the surviving trustee or 
trustees, and these statutes generally so provide. Where the 
statutes are silent on this point, the courts hold that they are 
to be interpreted as in no way affecting this old rule. 8 These 
statutes generally apply to joint tenancies existing when the 
statutes came into effect and their constitutionality has been 
generally sustained, the tenants being helped rather than in¬ 
jured by changing the existing joint tenancy into a tenancy in 
common. The statute has been held unconstitutional in some 
states, in so far as it applies to joint tenancies theretofore 
created, as a violation of vested property rights. 4 

These statutes are construed as applying to transfers or be¬ 
quests of personal property to two or more persons, as in 
similar transfers of real property, a tenancy in common arising 
unless a joint tenancy is expressly created.® Cases stating 
that the statutes were not intended to apply to personal prop¬ 
erty, joint tenancies arising where the unities are present 
according to the common law rule, have little to support them, 
and their statements to that effect seem to be dicta. 9 In 
England, the most important change has been the development 
of equitable jurisdiction over partition. In case the cotenants 
cannot agree in the use and enjoyment of their property held 
jointly or in common, they have always had since Henry 
VIII’s time a final remedy of partition. Partition at law, 
technical and blind to any special circumstances which justice 
demanded should be considered, gradually fell into disuse; 
equity assumed jurisdiction where special facts—such as im¬ 
provements made by one of the tenants, ownership by one of 
them in severalty of adjoining property so that on the partition 
his share should be allotted adjoining the land so owned by 

3 Boston F. Co. v. Condit, 19 N. J. 469; Matter of Kimberly, 150 N. Y. 

Eq., 394 - 90. 

4 See Walsh, Real Prop., 403, 404, 6 See Farr v. Grand Lodge, 83 

notes 10, 11. Wis. 446 (dicta) ; Emerson v. Cut- 

5 Bliven v. Seymour, 88 N. Y. ler, 14 Pick. (Mass.) 108, (Semble). 


CO-OWNERSHIP 


225 


him if it could be fairly done—-required the interference of 
equity in order that justice might be done. 7 The old writ of 
partition at law, already obsolete, was abolished in 1833.® The 
Partition Act, 1868, 8 9 empowers the court to direct a sale of 
the property and division of the proceeds instead of an actual 
partition whenever the court thinks it more beneficial to the 
cotenants; when requested by one or more having at least one 
moiety, the court shall sell unless there is some reason to the 
contrary. 

In the United States, jurisdiction over partition is now in 
equity. The general rule is that, if actual partition can be 
made without injustice to any of the tenants, the land must be 
actually divided; but if injustice to any of them would result, 
or if the best interests of all require a sale, the property will 
be sold and the proceeds divided. In an actual partition, that 
part of the premises containing improvements will be assigned 
to the tenant who made them if it can be done without injustice 
to his cotenant or cotenants. If not, the land will be sold and 
the tenant who made the improvements will be awarded out 
of the proceeds the additional amount the premises bring on 
the sale over what they would have brought if the tenant had 
not made the improvements in question; for justice obviously 
demands that every additional dollar realized through the 
improvements should go to the tenant who made them, and not 
to the other tenant or tenants, who expended nothing toward 
their cost, such tenant or tenants getting all they are entitled 
to in their share of that part of the proceeds of the sale which 
was realized from the property without the improvements. 10 


7 Story, Eq. Jur., I, §655; Swan 
v. Swan, 8 Price 518, (Eng. Court 
of Exch. in Equity) ; Hall v. Pid- 
dock, 21 N. J. Eq. 311. 

8 Stat. 3, 4 William IV, ch. 27, 
§ 36 . 

9 Stat. 31, 32 Viet., ch. 40, amend¬ 

ed by Stat. 39, 40 Viet., ch. 17. 


10 See note 7, supra; Freeman, 
Cotenancy, ch. 28; N. Y. Code Civ. 
Pro., §§1546, I 5 SO, I 573 -IS 79 . In 
addition, as to improvements, see 
Walsh, Real Prop., 433 - 435 . and 
cases cited and discussed, particu¬ 
larly as to doubt cast on the gen¬ 
eral rule by Cosgriff v. Foss, 152 


226 


HISTORY OF ENGLISH AND AMERICAN LAW 


With reference to the enjoyment and the use of the property 
before partition, if one tenant ousts the other either by putting 
him out or preventing him from entering and enjoying the 
property, the tenant ousted may sue the other in ejectment, 
recovering possession in common with the defendant. He 
may then sue for mesne profits because of the unlawful deten¬ 
tion of his interest in the property. If one tenant has sole 
possession without ouster of the other, who remains out of 
possession voluntarily, the tenant in possession cannot be 
compelled to pay the other anything because of his sole posses¬ 
sion and enjoyment in the absence of an express contract to 
pay therefor. He has been merely possessing and enjoying 
his own property. This principle was carried so far that, prior 
to the Statute of Ann, 11 a tenant collecting all the rents from 
tenants for years to whom the property was leased could 
keep it all without obligation to account. That statute re¬ 
quired the tenant as bailiff to account to his cotenant or co- 
tenants for their just share received by him. The statute is 
exceedingly indefinite, not specifying what in the nature of 
receipts he should be accountable for; but the courts in Eng¬ 
land have decided that it applies to rents only collected from 
tenants for years, not to profits derived from the sale of timber 
or minerals from the land. In the United States, the broader 
and better interpretation includes net receipts from sale of 
timber, cordwood, minerals mined or quarried on the premises, 


N. Y. 104, and cases contra in New 
York, note 7, pp. 435 , 436. 

The award to the tenant for im¬ 
provements is not their cost. The 
market value of the land with the 
improvements and of the land with¬ 
out the improvements is found. 
The difference is the value of the 
improvements at the time of sale. 
If the property as it stands sells 
under value, the amount under 


value is apportioned between the 
improvements and the land with¬ 
out them. The proportion of this 
charged to the improvements is de¬ 
ducted from their full value, and 
this is the proportionate amount 
which they realize on the sale and 
which will be awarded to the tenant 
who made them. See Hall v. Pid- 
dock, 21 N. J. Eq. 311, supra. 

11 Stat. 4, 5 Ann, ch. 16, §27. 


CO-OWNERSHIP 


227 


or other specific part of the land not in the nature of an annual 
product. The tenant in possession without ouster is not com¬ 
pelled to account for crops, annual or perennial, which he has 
produced and sold, or for any profits from any business con¬ 
ducted on the premises. If, however, both tenants are in 
possession, they are coowners of the crops. The tenant in 
possession cannot recover from the other for personal services 
in repairing, maintaining, or managing the common property, 
collecting rents, etc. He does this work for himself; and, in 
the absence of express contract, his cotenant is not liable 
therefor. He has no action against his cotenant for necessary 
repairs; but, in the accounting for rents and profits under the 
Statute of Ann, he may credit himself with the cost of such 
repairs, and also with all items of necessary expenditures in 
managing and maintaining the property, such, for instance, 
as janitor’s and elevator men’s wages, coal, and the like, in 
the case of apartment or office buildings, and also all taxes 
and interest on mortgages on the property. As to taxes and 
interest on mortgages, he has an action against his cotenant 
in equity for contribution, but not as to the other items. If no 
rents are collected and there is no liability to account for rents 
and profits, all these items, and also liability by one against 
the other for mesne profits because of ouster, will be deter¬ 
mined in the partition action in equity, which acts as a final 
adjustment of all accounts between the tenants. This, of 
course, would be impossible in partition at law. 12 

Waste between cotenants was provided against by the 
Statute of Westminster II, 13 Edward I, ch. 22, and similar 
statutes have been enacted in many of the states. None of 
these statutes defines waste or provides what acts shall be 
waste as between cotenants. The better view of the cases is 
that cotenants in fee are not guilty of waste in doing things 
which are in accord with the reasonable exercise of ownership, 

12 As to this summary of rights Walsh, Real Prop., 423-432, and 
and liabilities of coowners, see cases there cited. 


228 


HISTORY OF ENGLISH AND AMERICAN LAW 


such as the cutting and sale of trees fit to be cut, opening and 
working of new mines, and the like, which would be waste on 
the part of a tenant for life or for years. 13 Many cases in 
many states, without any intelligent consideration of the ques¬ 
tion involved, seem to hold loosely or generally, that waste 
between cotenants in fee will include all acts which would be 
waste if committed by tenants for life and for years. 14 On 
principle, only acts of wilful destruction, such as the wanton 
destruction of buildings or cutting of ornamental or immature 
timber, not justified as the exercise of reasonable ownership, 
should be punishable as waste between cotenants in fee. 


§ 58 . Estates in Entirety. An estate conveyed or devised 
to husband and wife in fee, for life or for years, is an estate 
in entirety, held by them as one person. The four unities 
must be present, and the estate survives to the survivor because 
of the unity, exactly as in a joint tenancy. Survivorship can¬ 
not be defeated, however, as in the case of joint tenants, by any 
conveyance, mortgage, or other act of either the husband or 
the wife alone. The unity may convey by the joint act of 
the two; but a deed or mortgage executed by either one alone 
is void at law, because they hold “per tout” and not “per my.” 1 
The Married Women’s Property Acts, giving to a married 
woman the rights of disposition and control over her property 
which she would have if unmarried, have not affected these 
estates except that the husband is no longer entitled to all the 
rents, profits, and enjoyment, but only to one-half thereof, as 
though he were tenant in common; the statute was designed 


13 Martyn v. Knollys, § Term 
Rep. 145; Maxwell v. Maxwell, 31 
Me. 184; McCord v. Oakland, etc. 
Mining Co., 64 Cal. 134; Edsall v. 
Merrill, 37 N. J. Eq. 114. 

14 See Walsh, Real Prop., 437, 
note 3. 

§58. 1 Litt., §168; Doe d. Free¬ 


stone v. Parratt, 5 Term Rep. 
652; Co. Litt., 187b; Knapp v. 
Windsor, 60 Mass. 156; Buttlar v. 
Rosenbluth, 42 N. J. Eq. 651. Of 
course they take as joint tenants or 
tenants in common if so expressly 
provided. McDermott v. French, 
15 N. J. Eq. 78. 


CO-OWNERSHIP 


229 


to restore to married women the income and enjoyment of 
their property, and to destroy the husband’s estate by the 
marital right, but to change in no way the estate held by the 
wife in any other respect, whether held by her in severalty or 
as tenant in common or joint tenant with her husband or any¬ 
one else, or as tenant in entirety with her husband. Since 
the statute above referred to, each has an undivided half of 
the rents and profits during their joint lives, and each has in 
addition the chance of survivorship. 2 Therefore, if either con¬ 
veys or mortgages the property, or his or her interest therein, 
the deed or mortgage, if for value, is good by estoppel in 
equity, though void at law, the grantee or purchaser under 
foreclosure of the mortgage taking one-half of the rents and 
profits or right to enjoy the property as owner of a half inter¬ 
est therein as tenant in common during their joint lives and 
also the right of survivorship of the tenant who executed the 
deed or mortgage. Therefore, if the husband is the tenant 
who conveys, and his wife dies first, the purchaser takes the 
property outright; if the husband dies first, the wife takes 
the property outright and the purchaser’s interest ends at 
once. 3 A conveyance or devise to A and B, husband and 
wife, and to C either as tenants in common, or joint tenants, 
as the case may be, gives to A and B a half interest which 
they hold between themselves by the entirety, and to C the 
other half as tenant in common or joint tenant, A and B to¬ 
gether counting as only one person. This survival of ancient 
technicality goes back to the time of Littleton. 4 It is sup¬ 
ported and confirmed by the modern cases, an English case 
affirming it in spite of the Married Women’s Property Acts. 6 
This is unquestionably a mere rule of construction, the courts 

2 B 1 ., Comm., II, 182; Buttlar v. 5 Jupp v. Buckwell, 39 Ch. Div. 
Rosenbluth, 42 N. J. Eq. 651; Hiles 148; Barber v. Harris, 15 Wend 
v. Fisher, 144 N. Y. 306. (N. Y.) 615; Hardenberg v. Har- 

3 See cases in preceding note. denberg, 10 N. J. L. 42 - 

4 Litt., §291. 


230 


HISTORY OF ENGLISH AND AMERICAN LAW 


so holding because of the presumed intention of the grantor 
or testator. The only possible reason for this construction is 
that the husband and wife take by the entirety in the absence 
of express provision to the contrary; and, if they take by the 
entirety, they can take only one moiety and not two individual 
moieties, because, in the latter case, they would necessarily 
hold individually and not as a unity. Therefore the question 
is whether the intent was to give a moiety to the unity, or to 
give to A, B and C individually each a separate one-third 
interest. The unity of husband and wife has always been a 
fiction of the law existing only for well defined purposes, the 
parties being recognized as separate individuals in all other 
respects; and the effect of the statutes has been to cut down 
to very narrow limits the situations in which the unity is 
still recognized. The average man, in the above case of a 
gift to A, B, and C as tenants in common or joint tenants, 
would naturally, therefore, intend a gift to them as individual 
tenants in common or joint tenants as he has stated; and the 
gift should be regarded as an affirmative expression of that 
intent, overthrowing the presumption that A and B take by 
the entirety as one person. We may reasonably hope that 
this construction will prevail, as the cases the other way are 
few and, in this country, decided before the Married Women’s 
Property Acts were enacted, and are based solely on the old 
rule without examination of the reasons on which it is based.® 

Estates by entirety exist in personal property as in realty, 
subject generally to the same rules. 7 In some states, however, 
the courts hold that the parties take personal property as ten¬ 
ants in common instead of by the entirety. 8 

Statutes providing that tenancies in common shall arise 


* In re March, 27 Ch. Div. 166, 
points out that the rule is one of 
interpretation only, and leaves the 
question in doubt as to the effect 
of the statute on this question. 


7 Bramberry’s Est., 156 Pa. St. 
628; Johnstone v. Johnstone, 173 
Mo. 91. 

9 Matter of Albrecht, 136 N. Y. 
91; Wait v. Bovee, 35 Mich. 425. 


CO-OWNERSHIP 


231 


unless a joint tenancy is expressly provided for, apply only to 
conveyances to individuals as such, and therefore do not apply 
to conveyances to husband and wife. 9 In some states, statutes 
expressly provide that they take as tenants in common unless 
it is expressly stated that they take by the entirety. 10 In a 
few other states, the Married Women’s Property Acts have 
been construed as destroying estates in entirety, the parties 
holding as tenants in common. 11 Absolute divorce turns the 
estate into a tenancy in common, the unity having been end¬ 
ed. 12 In the nature of things, partition of estates in entirety 
cannot be had, as the right of survivorship cannot be defeated. 
Of course, since the Married Women’s Property Acts, parti¬ 
tion may be made by mutual deed between the parties, though 
formerly such conveyances were void because of the unity. 13 

Apparently Bracton recognized the existence of estates by 
the entirety, or something very like them. 14 A case in the 
reign of Edward III establishes that the characteristics of 
this estate had already developed. Even the husband’s 
treason did not affect the wife’s right of survivorship. 16 The 
incidents of the estate, apart from modern statutory changes, 
are fully recognized by Littleton. 16 


9 Hardenberg v. Hardenberg, 10 
N. J. L. 42; Diver v. Diver, 56 Pa. 
St. 106; Hiles v. Fisher, 144 N. Y. 
306. 

10 Mass. Rev. L., ch. 134, §6; Wil¬ 
son v. Wilson, 43 Minn. 398; Hoff¬ 
man v. Stigers, 28 la. 302 (Last two 
cases held that statute as to joint 
tenants in usual form applied); 
McNeely v. South Pa. Oil Co., 52 
W. Va. 616, (survivorship done 
away with unless expressly re¬ 
served). 

11 Cooper v. Cooper, 76 Ill. 57; 


Robinson’s App., 88 Me. 17, and 
other cases cited Walsh, Real Prop., 

419, note 2. 

18 Stelz v. Shreck, 128 N. Y. 263, 
and cases cited Walsh, Real Prop., 

420, note 7. 

13 Litt., §168. 

14 Bracton, f. 208. 

16 See case cited by Coke, Co. 
Litt., 187a, Mich. 33 Edward III; 
Holdsworth, Hist. Eng. Law, III, 
no. 

18 Litt., §§168, 291; Co. Lift., 187b. 


CHAPTER XI 


ESTATES UPON CONDITION 

§59. Origin and Early History .—An estate upon condition 
is an estate in fee, for life or for years, which may be forfeited 
to the person creating it, or to his heirs, for breach of a 
condition expressly provided for in the instrument creating it. 
It arises out of the power of the owner to express his will in 
a disposition of land, so that the tenant, grantee, or devisee 
will take it subject to the terms and conditions provided for 
by the landlord, grantor, or devisor, as the case may be. 

Little or nothing is known of conditions or their enforce¬ 
ment in connection with estates in land before the Conquest 
and for over a century thereafter; in fact, the entire matter 
of conveyancing during that period is vague and indefinite. 
This is clear enough when we remember the vague restrictions 
upon alienation in favor of the heirs of the owners and the 
indefinite power of the lord, whatever it was, over convey¬ 
ances by his tenants. The disappearance of restrictions in 
favor of the heirs at the beginning of the thirteenth century 
seems to have been coincident with a marked extension in 
conveyancing, principally by subinfeudation as heretofore ex¬ 
plained . 1 In a vague and general way, the owner in convey¬ 
ing could impress his will by express provision upon the in¬ 
terest conveyed. The most common illustration of this is 
where conditional fees were limited to the donee and the heirs 
of his body, the donor successfully limiting the inheritance to 
a certain class of heirs . 2 The early use of a gage of lands, 
involving a conditional conveyance to the lender, developing 
by Littleton’s time into a well defined class of conditional 
conveyances by way of mortgage, was another illustration . 8 

§59. i See § 37 , ante. 8 Utt., §§331-344- 

2 See §28, ante. 


ESTATES UPON CONDITION 


233 


Most conveyances prior to the Statute Quia Emptores were 
by subinfeudation, the feoffor becoming lord of the feoffee, 
and frequently making the estate so conveyed conditional by 
reserving the right to enter and take back the land if the rent 
or other dues were not paid as provided for. This was also 
usual in leases for years. In either case, the forfeiture was 
enforced by the law in recognition of the owner’s right to 
convey on such terms as he pleased, provided they were not 
contrary to law. In fact, the power of the owner in this 
respect was greater in the thirteenth century than later when 
the law of estates became definitely established, and definite 
legal results followed the creation of the different kinds of 
estates. For instance, conditions against alienation were good 
in the thirteenth century, but were void as repugnant to the 
estate created by Littleton’s time . 4 An attempt to make land 
devisable by will by giving it to the feoffee, his heirs, assigns, 
and devisees, nearly succeeded in being recognized as good; 
but the lords seem to have awoke to what effect this would 
have on their rights of wardship and marriage, and attempts 
of this sort ceased in the latter part of the century . 5 At any 
rate, the power to subject any estate to any conditions not in 
themselves contrary to law was fully recognized; and such 
conditions were apparently enforced in the thirteenth century, 
though they do not seem to have been used as yet to restrain 
the tenant in the use of the land. 

§60. Later History of Conditional Estates .—The common 
law incidents of these estates were developed in the courts 
during the fourteenth, fifteenth, and sixteenth centuries, so 
that, by Coke’s time, the law of conditional estates had 
assumed, for the most part, its final form. Littleton’s Treatise 
on Tenures, in the latter part of the fifteenth century, with 
Coke’s Commentaries on Littleton, in the early part of the 

* Bracton, f. 46, 46b; Litt., §360. 5 Poll. & Mait., Hist. Eng. Law, 

II, 25-27. 


234 


HISTORY OF ENGLISH AND AMERICAN LAW 


seventeenth century, make this clear. Littleton, in the sec¬ 
tions defining conditional estates, recognizes their essential 
characteristics as they exist today. The estate, whether in 
fee, in tail, for life, or for years, is subject to forfeiture by the 
entry of the feoffor or his heirs for breach of the condition; 
and, by entry, the feoffor takes his former estate, destroying 
the estate upon condition and all interests like tenancies for 
years, or other interests subordinate to the conditional estate 
which may have arisen during its existence . 1 Littleton says 
that the words “upon condition,” “provided always,” “that if 
it happen,” etc., create conditional estates without express 
clause of re-entry or forfeiture ; 2 but, if the language of condi¬ 
tion is not clear, a clause of forfeiture may be required to 
create a defeasible estate . 3 The modern cases hold, however, 
that these express clauses of condition will not create estates 
upon condition where the intent of the grantor or devisor was 
to create a restriction or easement or a charge instead of a 
defeasible estate. Thus a devise of land to A “on condition 
that he pay B a legacy of one thousand dollars within one 
year after my death,” is construed as creating a charge on the 
land devised to A, not an estate upon condition in A subject 
to forfeiture for failure to pay the legacy. The latter con¬ 
struction would defeat the testator’s intention, since A would 
not get the land, which would go to A’s heirs because of the 
forfeiture, and B would not get the legacy of one thousand 
dollars . 4 So, if a deed conveys land on the express condition 
that it shall not be used for the purposes of a tavern or public 
house, and the attendant facts show that this was intended as 
a restriction for the benefit of adjoining property retained by 

§60. 1 Litt., §§325, 326. “And it 3 lb., § 33 i- 

is called an estate upon condition 4 Shars & B., Lead Cas., I, 123- 

because that the estate of the feoffee 126; Cunningham v. Parker, 146 

is defeasible, if the condition be not N. Y. 29. Walsh, Real Prop., 454, 

performed.” §325. 455. 

2 Litt., §§328, 329, 330. 


ESTATES UPON CONDITION 


235 


the grantor, it will be construed as a restrictive covenant en¬ 
forceable by injunction in equity by way of specific perform¬ 
ance, not as a condition involving forfeiture. 6 For the same 
reason a grant of land on condition that a right of way be 
kept open thereover from a building retained by the grantor 
will be construed as a grant reserving a right of way, not a 
conditional grant involving forfeiture. 8 Of course, an express 
clause of forfeiture would make the estate subject to forfeiture 
in all these cases; but, in its absence, the real purpose of the 
testator is accomplished by giving effect to the provision as 
creating a charge, a restrictive covenant, or an easement, as 
the case may be; and, as the courts do not favor forfeitures, 
they will follow the reasonable construction not involving 
forfeiture, which gives effect to the real intent of the testator 
or grantor. 

Littleton and Coke recognized the rule that the right of 
entry could not be assigned or devised, even when coupled 
with a reversion where the estate upon condition was for 
years or for life, and therefore a right of entry could not be 
reserved in favor of anyone other than the feoffor, lessor, or 
their heirs. Therefore, if a landlord conveyed the reversion, 
the condition was gone because neither the original landlord 
nor his grantee could enter for a breach, the landlord because 
he had parted with the reversion, the grantee because the 
right of entry could not be transferred. 7 This was corrected 
by the Statute 32 Henry VIII, ch. 34, which provided that 
the right of entry should pass with the reversion in all cases 
of tenancies for years or for life upon condition. This made 
the right of entry an inseparable incident of the reversion, 
passing with it in all cases. 8 Statutes in the United States 
have enacted substantially the same provision. In New York, 
the statute also includes perpetual rent charges attached to 

'Post v. Weil, 115 N. Y. 361. 454 , note 2. 

6 Avery v. N. Y. C. R. Co., 106 7 Litt., §347. 

N. Y. 142. See Walsh, Real Prop., * Co. Lift., 215a. 


236 HISTORY OF ENGLISH AND AMERICAN LAW 


estates in fee, so that a right of entry for non-payment of 
rent in such cases will pass on an assignment of the rent 
charge. 9 Coke points out that the grantee or assignee of the 
reversion could not take advantage of every forfeiture, but 
only of those incident to the reversion as for non-payment of 
rent, or for the benefit of the land, as for waste, failure to 
make repairs, and the like. 10 The right of entry did not pass 
to the lord by escheat on the feoffor’s death without heirs, 
and as the Statute 32 Henry VIII did not apply to an escheat 
of the reversion, it follows that, on escheat of the reversion to 
the lord, the tenant for life or for years held free of the con¬ 
dition. 11 

At the time of Littleton, conditional conveyances were freely 
used as security for loans, title to revert to the feoffor on his 
repayment of the loan, or to become absolute in the feoffee if 
default should be made in payment of the debt. 12 Though 
conditions seem to have continued to be used up to Littleton’s 
time to accomplish family settlements and other arrangements 
involving the creation of future estates not recognized at com¬ 
mon law when created directly, the condition being that the 
donee should enfeoff another or others at a later time or on 
the happening of a contingency as might be provided, this 
method could never have been very effectual as there was no 
way to compel such refeoffments. If the first grantee failed 
to comply, all that could be done was to enter for condition 
broken. 13 Uses, as we shall see, permitting of the creation of 
all sorts of interests of this kind by a simple direct method, 
displaced conditional conveyances altogether for this purpose. 

That there were limits to the power of the feoffor to impose 


9 N. Y. Real Prop. L., §223. 

10 Co. Litt., 215b. The statute did 
not apply to reversions after estates 
tail upon condition. 

11 Litt., §348. 

12 Litt., §§332-344 Inc., as to con¬ 


ditional conveyances by way of 
mortgage. 

13 Litt., §§352-359, deal with con¬ 
ditional conveyances of this kind. 
See §63, post, as to creating of these 
interests by way of use after the 
Statute of Uses. 


ESTATES UPON CONDITION 


237 


his will on the estate transferred in the form of conditions, was 
recognized by Littleton in the sections dealing with conditions 
illegal because in total restraint of alienation. 14 By Coke’s 
time, the law applying to conditions illegal because involving 
the commission of a crime or because repugnant to the estate 
created or because contrary to public policy, and to conditions 
impossible of performance when created, or subsequently be¬ 
coming impossible, was pretty well worked out as it is today. 
Such conditions were void, and the estates made subject to 
such conditions subsequent were therefore absolute. If the 
condition was precedent, the estate could never vest, since the 
condition on which its vesting depended could never happen 
in contemplation of law. 15 

There is some authority for the rule that an attempt to 
assign the right of entry contrary to the Statute 32 Henry 
VIII, ch. 9, which forbids transfers of such interests under 
penalty of forfeiture of the interest granted, works a forfeiture 
of the right of entry, so that the tenant holds thereafter free 
of the condition. 16 Modern authority in favor of this old 
rule is very meagre; and, as there is no other instance of 
forfeiture because of an attempt to assign a non-assignable 
right of action, we may fairly claim that it is no longer law, 
particularly as the rule has not been asserted in several cases 
where it would have been decisive of the case. 17 Statutes in 
England and some of the states now expressly provide that 
rights of entry for breach of condition, whether before or 


14 Litt., §360, §361. Coke said: 
“For it is absurd and repugnant to 
reason that he, that hath no possi¬ 
bility to have the land revert to him, 
should restrain his feoffee in fee 
simple of all his power to alien.” 
Co. Litt., 223a. He further stated 
that the same rule applies to a like 
condition attached to a transfer of 
a term of years or a chattel of any 
kind. 


« Co. Litt., 206b; 206a. 

14 Shep., Touchstone, I, 157, 158; 
Vin., Ab. V, Condition (I d. 11) ; 
Hooper v. Cummings, 45 Me. 359; 
Rice v. B. & W. Corp., 12 Allen 
(Mass.) 141. 

17 North v. Graham, 235 Ill. 178; 
Nicoll v. N. Y. & Erie R. R. Co., 
12 N. Y. 121. See Walsh, Real 
Prop., 459 , note 5. 


238 HISTORY OF ENGLISH AND AMERICAN LAW 


after breach, may be assigned or devised by will. 18 Similar 
statutes should be enacted in all the states, as there is no real 
difference between these interests and contingent remainders 
and other future contingent estates which are now made 
assignable and devisable by statute. Further, the tendency 
is strongly toward permitting full freedom of transfer of 
rights of action not purely personal but involving contractual 
or property rights. 

The rules applying to waiver of breach of condition, and 
to license or consent in advance to do a thing which the condi¬ 
tion forbids, need not be taken up here, as they are part of the 
modern law of property, and a tracing of their history is not 
needed in order to understand their reason and application. 
They developed as necessary incidents of conditional estates, 
growing out of the nature of those estates, already sufficiently 
considered. 19 

In all cases where the condition calls for the payment of a 
definite sum of money, like rent, equity will relieve the tenant 
from the forfeiture if without laches he applies for relief, de¬ 
positing the amount due with interest to date in court. Equity 
regards the forfeiture as security for payment of the rent, and 
holds that, if the landlord gets his rent with interest thereon 
to date of payment as damages for the delay, he has no right 
to ask for more. 20 In the same way, equity will relieve from 
forfeitures arising out of conditions calling for acts not in¬ 
volving merely the payment of a stated sum of money, pro¬ 
vided that the breach was due to accident, mistake, fraud, or 
surprise, that the tenant acted in good"faith and was not wil- 


18 8, 9 Viet., ch. 106, §6. and 1 
Viet., ch. 26, §3, enacted in 1843 
and 1837 respectively; Cornelius v. 
Ivins, 26 N. J. L. 376, and Southard 
v. Southern R. Co., 26 N. J. L. 13, 


construing Statute of Mar. 14, 1851; 
Hoyt. v. Ketcham, 54 Conn. 60. 

19 See Walsh, Real Prop., 460-471. 

20 Giles v. Austen, 62 N. Y. 486, 
and cases in Walsh, Real Prop. 472, 
note 2. 


ESTATES UPON CONDITION 


239 

fully guilty of a breach, and that no harm resulted from the 
breach. 21 

§61. Estates upon Limitation. —An estate which is to end 
on the happening of a limitation, involving no forfeiture by 
way of punishment for failure to comply with a condition, is 
an estate upon limitation. Like conditional estates, they may 
be in fee, for life, or for years. Words of limitation limiting 
the duration of the estate, instead of words of condition, are 
used in creating them, such as “while,” “during,” “as long as,” 
“until,” etc. Thus a grant or devise “to A and his heirs until 
B returns from Rome,” “as long as St. Paul’s shall stand,” 
“until Gloversville shall be incorporated as a village,” are fees 
upon limitation. There is no idea of forfeiture or punishment 
involved. The estate ends ipso facto without entry when its 
allotted time has expired. The grantor or heirs of the devisor 
have a possible right of entry which at common law could not 
be assigned or devised; but, in England and those states having 
statutes providing for the right to convey or devise rights 
of entry, these rights of reverter are included. An estate 
during widowhood is a good illustration of a life estate upon 
limitation; no punishment for remarriage is involved, but 
rather a provision for the widow until her remarriage when 
she will be otherwise provided for. In case of doubt as to 
whether an estate upon condition or upon limitation is intend¬ 
ed, the doubt should be settled by inquiring whether or not 
forfeiture for disobeying a condition is involved. 1 

The history of limitations and possible rights of reverter is 
substantially the same as that of conditions and rights of 
entry. Question has been made whether, after the Statute 
Quia Emptores, it has been possible to create estates in fee 

21 Mactier v. Osborn, 146 Mass. 479, as to estates upon limitation 
399- generally. 

§61. 1 Walsh, Real Prop., 477- 


240 


HISTORY OF ENGLISH AND AMERICAN LAW 


upon limitation, the argument being that the right of reverter 
depends upon tenure between the grantor and grantee of the 
fee, which has not existed in cases of conveyances made since 
the Statute Quia Emptores. The history of limitations will 
be briefly examined with reference to this question. 

Limitations of estates in fee have been recognized as valid 
from the fourteenth to the nineteenth centuries by most of the 
principal legal authorities; 2 and their validity was not ques¬ 
tioned until Mr. Sanders raised the question in his work on 
uses. 3 It would not have occurred to anyone in the thirteenth, 
fourteenth, or fifteenth centuries to raise such a question, since 
the right to limit the estate as well as to grant it subject to a 
condition, undoubtedly depended on the right of the owner 
to impose his will on the estate created, to limit its existence 
in any way he pleased which was not illegal or impossible. 
The difficulty is to explain how the fee comes back to the 
feoffor ipso facto without entry on happening of the limitation. 
Before Quia Emptores, it would escheat to the feoffor as lord, 
assuming that the fee upon limitation was created by subin¬ 
feudation. Would an express provision that the land should 
revert to the feoffor on the happening of the limitation be 
good after the Statute Quia Emptores and before the Statute 
of Uses? We know that a gift over to a third person would 
be void in the fourteenth and fifteenth centuries as an attempt 
to create a fee upon a fee. The purpose of the Statute Quia 
Emptores was to save the rights of lordship from being de- 


2 Co. Litt., 27a, 214b, 215a; Bl., 
Comm., II, 109; Kent, Comm., IV, 
127; Leonard v. Burr, 18 N. Y. 96; 
First Univ. Soc. v. Boland, 155 
Mass. 171; Siegel v. Lauer, 148 Pa. 
St. 236; Friedman v. Steiner, 107 
Ill. 125; North v. Graham, 235 Ill. 
178; Morris Canal Co. v. Brown, 
27 N. J. L. 13; Board of Education 
v. Inhabitants of Van Wert, 18 Oh. 


St. 21. See Wakingham’s Case, 2 
Plowd. 557, where the gift is “as 
long as the church of St. Paul shall 
stand.” See also, Bl., Comm., II, 
155, citing Litt., §380; Coke, Inst., 
I, 234; 10 Coke 41. 

3 Sanders, Uses (5th ed.), I, 208; 
Leake, I, 36, and note (d), Gray, 
Perpetuities (2nd ed.), §§20-42. 


ESTATES UPON CONDITION 


241 


stroyed by subinfeudation. Certainly the creating of a limited 
fee with right of reverter in the feoffor would not interfere in 
any way with the incidents of lordship. The statute did not 
have as its purpose the cutting down of the owner’s right to 
impose his will on estates created by him. To hold that the 
right of reverter at this point necessarily depends upon tenure, 
is to beg the entire question. We shall see later that a fee 
upon a fee was perfectly good in the thirteenth century, and 
that the rule subsequently developing, that such a limitation 
over to a third person was void for repugnancy to the first 
fee, was a bad rule not based on any valid reason—an unwar¬ 
ranted interference with the right of the owner to dispose of 
his property in any way he pleased so long as he did nothing 
illegal or contrary to public policy. We shall also see that 
this rule was substantially done away with by the operation of 
the Statute of Uses and the Statute of Wills, under which 
statutes a fee upon a fee created by shifting use or executory 
devise became perfectly good at law as well as in equity. 4 Are 
we bound to hold, because a fee upon a fee under this mistaken 
rule was bad at law for a comparatively short time, that this 
bad law should be extended by implication to a provision that 
the land should revert back to the feoffor on the happening of 
the limitation, though there is no case or suggestion of author¬ 
ity in Littleton, Coke, Blackstone, or the other great authors 
of any such extension? When we remember that Littleton, 
Coke, Blackstone, and all the other authorities of note, as well 
as the courts, expressly or impliedly recognized these limita¬ 
tions as valid, we are warranted in asserting that an express 
provision in a feoffment that, on the happening of the limita¬ 
tion, the land should revert back to the feoffor or his heirs, was 
good, even though for a time a gift over to a third person in 
such case would be void. If that be so, then the law will 
imply it without express statement, and the right of reverter 

4 See §63, post. 


17 


242 


HISTORY OF ENGLISH AND AMERICAN LAW 


will exist entirely independent of tenure. 5 This explains the 
unbroken recognition of fees upon limitation from Littleton 
and Coke to Blackstone. It is better than begging the whole 
question by assuming that the right of reverter depends neces¬ 
sarily on tenure, and that everybody has been wrong on this 
point during all these centuries. 

Certainly after the Statute of Uses and under the modern 
statutory law which permits the owner to create a fee upon 
a fee or any other estate not in violation of the rule against 
perpetuities, no one would deny that an express provision for 
a reverter to the grantor or his heirs or the heirs of the 
devisor would be good. If so, then it must be implied as a 
matter of law, the right of reverter remaining in the grantor 
or the heirs of the devisor if not given over to a third person. 
Any other conclusion savors of the narrow pedantry and tech¬ 
nicality which has been the greatest reproach of the law in the 
past, and from which it must break away if it is to develop in 
accord with modem progress. Even if tenure has anything 
to do with the matter, tenure has ceased to have any real 
significance not only in this country but in England; and 
therefore the modern cases which fully recognize the right of 
reverter and the validity of fees upon limitation are entirely 
sound. 6 * 8 Of course, these possibilities of reverter should come 
under the rule against perpetuities, but the failure of the courts 
so to hold is no reason for asserting that they cannot exist. 


5 Thus Bracton, speaking of a 

limitation to heirs of the body, says, 
“But if a feoffee to himself and the 
heirs of his body have no such 
heirs, the land will revert to the 
donor by an implied condition, even 

if there be no mention in the deed 
of gift of such reversion.” F. 17. 

8 Leonard v. Burr, 18 N. Y. 96; 
First Universalist Soc. v. Boland, 
155 Mass. 171, the court saying: 


“Whatever may be the true solu¬ 
tion of it (viz., this question) in 
England, where the doctrine of ten¬ 
ure still has some significance, we 
think the existence of such an es¬ 
tate as a qualified or determinable 
fee must be recognized in this coun¬ 
try. and such is the general consen¬ 
sus of opinion of courts and text 
writers,” citing cases and authori¬ 
ties. 


CHAPTER XII 


FUTURE ESTATES 


§62. Reversions and Remainders. —The situation existing 
at the beginning of the thirteenth century when the right of 
presumptive heirs to restrain alienation disappeared, was, as 
we have seen, an expansion of conveyancing and the general 
recognition of the power of the feoffor to determine very 
largely as he pleased the character of the interest or interests 
in his land which the feoffee should take. The terms reverti, 
revert, and remanere, remain, had been used for a long time 
prior to the thirteenth century, reverti, or redire, describing the 
return or the reverting of the land to the feoffor or his heirs 
after the expiration of an estate for life or for years, and 
remanere describing the remaining or staying out of the land 
in some third person thereafter when the balance of the feof¬ 
for’s interest in fee had been conveyed to such third person at 
the time the estate for life or for years was created. 1 These 
terms were in general use early in the thirteenth century, and 
by Edward I’s reign the terms “reversion” and “remainder” 
had attained their technical legal use as we understand them 
today. 2 The terms “reversioner” and “remainderman,” came 
still later. A reversion is so called because it reverts to the 
feoffor on the termination of the precedent estate for life or 
for years. A remainder is the same estate where it is to re¬ 
main out, remanere, in a third person, instead of reverting, it 
having been given over to such third person by the original 
feoffment. There is no doubt that any number of successive 


§62. 1 Poll. & Mait., Hist. Eng. 

Law, II, 21. See instances in Kem¬ 
ble, Code Dipl., Ill, 4, 22, of Ed¬ 
gar’s time, and the will of Count 
Raymond of Toulouse, in Malibon, 


De Re Diplomatica, (A. D. 960), 
in which remanere is used in cre¬ 
ating many remainders. Id., notes 
I, 2. 

2 Y.B. 33-35 Edward I, 429. 


244 


HISTORY OF ENGLISH AND AMERICAN LAW 


life estates in remainder to persons in existence could be 
created followed by either a reversion or remainder in fee, 
depending on whether the feoffor granted away the fee by the 
feoffment creating the successive life estates. 3 A surprising 
fact of this period prior to the Statute De Donis is the existence 
of remainders after conditional fees; in fact, there were more 
remainders after conditional fees than after life estates, as 
disclosed by the many thousands of fines of this period which 
have been preserved. Pollock and Maitland say that one out 
of every two fines creating conditional fees, limited remainders 
thereafter in case of failure of issue of the first tenant in fee; 
and the right of the remainderman was recognized and pro¬ 
tected. 4 Of course, after the Statute De Donis, these became 
true remainders in the later common law sense, the conditional 
fee becoming a fee tail, a particular estate instead of an estate 
in fee upon condition; but, for a considerable time prior to De 
Donis, these remainders were perfectly good. There is little 
doubt that at this time contingent remainders limited to un¬ 
born persons were valid, the law giving full effect to the power 
of the owner to work his will through the “form of the gift,” 5 
though apparently no specific case of that kind is definitely 
referred to in the books. 

Contingent remainders are distinguished from vested re¬ 
mainders in that they depend on the happening of a condition 
precedent. On the happening of the condition, they become 
certain and therefore vested, though the remainderman must 
wait for his possession until the precedent estate for life or 
for years ends.* Remainders to persons not yet born or to 


3 Pollock & Maitland refer to an 
early case of successive life estates 
in Cart. Rams., I, 150. Poll. & 
Mait., II, 22, note 1. 

4 Poll. & Mait., II, 24. Bracton, 
f. 17, speaks of a gift to the feof¬ 

for’s eldest son and the heirs of his 
body, and on failure of such heirs 
to his next eldest son and the heirs 


of his body, thence to the third son 
in the same way, and so on. See 
also f. 18, 18b; Bracton’s Note 
Book, pi. 86. 

6 Bracton, f. 13; Britton, I, 231. 

6 See Walsh, Real Prop., 493-495, 
and cases and authorities there 
cited. 


FUTURE ESTATES 


245 


a class of persons not ascertained, are necessarily contingent, 
depending on the condition precedent that the person be born 
or ascertained later as a member of the class. Contingent 
remainders to ascertained persons may depend on any collat¬ 
eral contingency which must happen before the remainder can 
vest in interest. It vests in possession, like a vested remain¬ 
der, only on the expiration of the particular estate for life, for 
years, or in tail. Early in the fourteenth century, the validity 
of contingent remainders began to be questioned. In 1304, 
a case in the Year Book regards as strange a remainder to the 
right heirs of a husband limited after an estate tail to the hus¬ 
band and wife and the heirs of their two bodies “seeing that 
the remainder was not granted to any certain person.” 7 A 
gift by remainder to unascertained persons was regarded as 
bad in 1337 ; 8 and later cases established definitely that con¬ 
tingent remainders were void. 9 In the fifteenth century, after 
some wavering, it was held that a remainder to the heirs of 
A, a living person, limited after a life estate, was good, A 
having died leaving heirs before the life tenant’s death. 10 
Littleton, however, a few years later apparently regarded gifts 
to unascertained persons as void. 11 Doubts as to the validity 
of remainders depending on collateral contingencies other than 
the birth or survival of the remaindermen continued into the 
next century. Professor Gray points out that, though re¬ 
mainders to unborn persons were recognized as valid, they 
were very seldom used for a considerable time after the 
Statute of Uses (1535) ; and he refers to Chudleigh’s Case 12 


7 Y.B. 32, 33 Edward I, 328. The 
rule in Shelley’s case subsequently 
would make this good as a gift to 
the husband in fee, subject to the 
fee tail. See Holdsworth, Hist. 
Eng. Law, III, 116. 

s Y.B. 10 Edward III, Mich., pi. 8. 

9 Y.B. 11 Henry IV, Trin., pi. 143. 

10 In 9 Henry VI, 24a, (1430). 


Martin J., so stated the law, though 
the question was left undecided. In 
1453. the question was settled as 
above stated. Fitz., Abr. Feoffe- 
meates (H. 32 Henry VI), pi. 99, 
cited in Holdsworth, Hist. Eng. 
Law, III, 117, note 2. 

11 Litt., §721. 

12 1 Coke 120a. 


246 HISTORY OF ENGUSH AND AMERICAN DAW 


(1556) as one of the first involving gifts in tail to successive 
unborn children of a living person, in substantially the form of 
the modern English family settlement, as indicating how sel¬ 
dom this admittedly legal kind of contingent remainder was 
used. 13 Though the validity of contingent remainders was 
fully established by Lord Coke’s time, the rules governing 
them were slowly evolved during the seventeenth and eight¬ 
eenth centuries. 14 

The fundamental principle at the bottom of the special rules 
governing contingent remainders is that the seisin or feudal 
possession must never be without an owner. No remainder, 
vested or contingent, could be created to arise without a pre¬ 
cedent estate to support it. A feoffment necessarily involved 
transfer of the seisin to another, and therefore the feoffor could 
not create an estate in another to arise at a future day and at 
the same time retain seisin in himself. Feoffment to A today 
to take effect tomorrow, or next week, or on the death of the 
feoffor, was void, as to give effect to such limitations would 
be to permit the seisin to be vacant during the interval. But 
if the feoffor transferred the land to X for a term of years, 
for life, or in tail, remainder to A and his heirs, the future 
estate in A was good, seisin passing to X, if a freeholder for 
life or in tail, or to A through the possession of X, if X was 
given a term of years only. 15 But a contingent remainder was 
void if limited after a term of years because the possession of 
the tenant for years could not give the contingent remainder¬ 
man seisin, as he had only a possible chance of getting the 
remainder, not a part of the *fee; and so seisin would be in 
no one until the remainder should become vested on the hap¬ 
pening of the contingency on which it depended, if the re¬ 
mainder were given effect. Therefore contingent remainders 

13 Gray, Perp. (2nd ed.), no. 15 Buckler’s Case, 2 Coke 55; 5 

14 Williams, Real Prop. (17th Coke, 94b; Co. Litt., 217a; Bl., 

ed.), 414. Comm.., II, 166. 


FUTURE ESTATES 


247 


had to be supported at all times by precedent freehold estates 
for life or in tail. 16 

The remainder, whether contingent or vested, had to take 
effect instantly on the termination of the precedent estate. 
If limited to take effect a day or a week later, the remainder 
was void, as no one would be seised during the interval, sup¬ 
posing the remainder to be given effect. 17 Contingent re¬ 
mainders were destroyed if the condition precedent on which 
they depended had not happened during or at the moment of 
the expiration of the precedent freehold estate. Otherwise 
seisin would be in abeyance, the seisin of the precedent tenant 
for life or in tail having ended, and the contingent remainder¬ 
man being still incapable of becoming seised, since his interest 
continued to be a mere possibility. 18 

Contingent remainders could not be conveyed at common 
law, though they might be released to the owner of the land. 
The only reason was that they were possibilities, like rights 
of entry or of reverter in connection with estates upon con¬ 
dition and limitation. They could be devised and inherited, 
however, like vested interests. 18 

Anything that destroyed the precedent freehold estate 
destroyed at the same moment any contingent remainders de¬ 
pendent thereon, as seisin otherwise would be left in abeyance. 
Thus, if the life tenant forfeited his estate for treason or by 


18 1 Coke 130a, 134b, 138a; Bl, 
Comm., II, 171. 

17 Bl., Comm., II, 166, 167; Wil 
Hams, Real Prop. (17th ed.), 417. 
Where the owner of land died leav¬ 
ing his wife with child, the unborn 
child was not in existence and 
therefore could not take as heir; 
and in a similar case of a remain¬ 
der to the surviving child or chil¬ 
dren of the father, the unborn child 
could not take on the father’s 
death, since seisin would be put in 


abeyance. This was corrected by 
the Statute 10, 11 William III, ch. 
16, which gives posthumous chil¬ 
dren the same rights and estates as 
though born in the father’s life¬ 
time. Similar statutes have been 
enacted in the different states. 

18 Festing v. Allen, 12 M. & W. 
279. Williams, Real Prop. (17th 
ed.), 419. 

19 Fearne, Cont. Rem., 365, 366; 
Ingilby v. Amcotts, 21 Beav., 585. 


248 HISTORY OF ENGLISH AND AMERICAN LAW 


attempting to enfeoff another of the fee, or if he merged his 
life estate with the reversion in fee, the contingent remainder 
perished. 20 

The effect of modern statutes upon contingent remainders, 
doing away with all of these technical rules, and abolishing 
all distinction between executory estates and contingent re¬ 
mainders, will be taken up after the discussion of executory 
estates. 

§63. Executory Estates .—Future estates created in any 
way other than as remainders are executory estates. They 
include (a) Estates to arise or spring up at a future day with¬ 
out an intervening particular estate, the land remaining in the 
possession and ownership of the person creating the estate or 
his heirs during the interval, (b) Estates to arise some time 
after the termination of a precedent particular estate instead 
of immediately after, (c) A contingent remainder after a 
term of years, (d) A fee upon a fee. (e) A fee after a life 
estate on a contingency in derogation of the precedent life 
estate. The first three classes were void at law prior to the 
Statute of Uses (1535), because they put seisin in abeyance 
as explained in the preceding section. They put seisin in 
abeyance because judges and lawyers had not yet grasped the 
idea of permitting the owner of land to create a future interest 
in the land in another by deed of grant, retaining seisin in 
himself. To be sure, they held that reversions and remainders, 
when actually in existence, were mere incorporeal rights which 
could be conveyed by deed of grant without livery of seisin; 
but it does not seem to have ever occurred to anyone that these 
same interests could be created out of estates in fee by deed of 
grant of the owner without livery of seisin, the owner retain¬ 
ing the seisin and ownership in himself until the future estate 
should vest in possession. If this idea had occurred to them. 


2 ®Fearne, Cont. Rem., 317. 


FUTURE ESTATES 


249 


we should have been spared a great deal of law the teaching 
and expounding of which is so difficult because it is so opposed 
to ordinary common sense. Starting in with the premise that 
livery of seisin is necessary to create a future estate of free¬ 
hold, it follows, as stated in the preceding section, that seisin 
had to pass to someone in these cases since it could not remain 
in the feoffor, and if there was no possession in the tenant of 
a preceding estate for life or for years, nobody would be 
seised during the interval elapsing before the taking effect of 
the future estate, and this made the future estate void. 

In the last two classes of cases, the reason given for the 
rule that a limitation over of an estate in fee on the happening 
of a condition terminating the first estate in fee or for life, 
seems to have been that the limitation was repugnant to the 
first estate created, in that it ended the estate before its 
natural termination. 1 We have seen in the preceding chapter 
that estates in fee on condition or limitation subject to forfei¬ 
ture or termination on the happening of some event in the 
future, were good at law, the right of the donor to impress 
his will on the estate being recognized to that extent; but the 
right of entry or of reverter could not be reserved in favor of 
third persons, and therefore could not be assigned to third 
persons after their creation. 2 The destruction of these estates 
by such conditions or limitations was not void for repugnancy; 
conditions were void for repugnancy only when they restrained 
the tenant from conveying the property or from taking the 
profits, as is stated in the same section above referred to. 
Probably a fee upon a fee or upon a life estate on a contingency 
in derogation thereof were void because they were regarded 
as attempts to create rights of entry or reverter in favor of 
strangers. No reason is given for this rule. The rules 
against champerty and maintenance explain the non-assign¬ 
ability of rights of entry and reverter after they had been 

§63. 1 Fearne, Cont. Rent. (8th den’s note to Gilbert’s Uses, 177. 
ed.), 12, Butler’s note, p. 383; Sug- 2 See §52, ante. 


HISTORY OF ENGLISH AND AMERICAN LAW 


created; and it is obvious that a right to enforce a forfeiture 
for breach of condition can be reserved for and enforced by 
the person creating it alone; but this does not touch the ques¬ 
tion involved in creating a fee upon a fee or upon a life estate- 
in derogation thereof. In its last analysis, that question is 
this: Will the expressed purpose of the feoffor be carried out 
by the law in recognition of the right of the owner to do as 
he pleases with the property in this instance, or is such a gift 
over to a third person contrary to public policy so that the 
intent of the feoffor cannot be recognized and enforced? 
Sometimes the reason given is that nothing remains to give 
over after the first fee, that the gift over is void because it is 
not a remainder; but this is a mere restatement of the rule, not 
a reason for it. 

Therefore the obvious conclusion must be that no reason 
for the rule ever existed. The arbitrary rule became estab¬ 
lished somehow during the fourteenth and fifteenth centuries 
that no future estate could be created except as a remainder. 
It must be remembered that a fee upon a fee did not put seisin 
in abeyance any more than did a vested remainder after a 
life estate, the seisin shifting instantly on the termination of 
the first estate in both cases. When it is further remembered 
that a fee upon a fee was not only valid but quite common in 
the thirteenth century, in the case of successive conditional 
fees limited to the successive donees and the heirs of their 
bodies 3 and that it again became a valid legal limitation after 
the Statute of Uses and the Statute of Wills, we can only say 
that it was not valid during the intervening time because of 
empty and unreasonable technicality. 

Before the Statute of Uses, these five kinds of executory 
estates could be created in equity by way of use. Thus a 
feoffment could be made to X as trustee to the use of A upon 
his attaining twenty-one, or upon his marriage, or upon the 


8 See §62, ante. 


FUTURE ESTATES 


251 


death of the feoffor. The use would result back to the benefit 
of the feoffor until the happening of the contingency, whcv 
would possess and enjoy the land as before until the happening 
of the event, A’s marriage, attaining twenty-one, or whatever 
the condition might be, when the trustee would be compelled 
to permit A to take and enjoy the land according to the terms 
of the use. In the same way, the feoffment to X might be to 
the use of A and his heirs; but, if A should die without issue,, 
then to the use of B and his heirs; and the trustee would be 
compelled by equity to permit A to possess and enjoy the 
land, and on his death without issue to permit B to possess 
and enjoy it in the same way. The first case is a springing- 
use, and no question of abeyance of seisin was involved as 
the trustee had the legal title and was seised throughout. 
The second case is a shifting use, the use shifting over from 
A and his heirs to B and his heirs on the happening of the 
contingency provided for, there being the same obligation in 
conscience upon the trustee to hold for B thereafter as there 
was to hold for A before the contingency occurred. The same 
thing could be done by covenant to stand seised or by bargain 
and sale, the nature of which has already been explained. 4 
The Statute of Uses changed all existing inactive uses and all 
thereafter created into legal estates; and therefore, after the 
statute, a deed of bargain and sale, or a covenant to stand 
seised, or a deed of lease and release under the statute used 
commonly in England as heretofore explained, 6 could be em¬ 
ployed to create uses to spring up on the happening of a con¬ 
tingency in the future, or on a given date in the future, without 
creating at the same time any precedent estate; or to create a 
fee upon a fee by way of use as explained above, and the 
statute, operating on these uses, would convert them instantly- 
into corresponding legal estates. Thus all of these interests, 
with possibly one exception, came to be perfectly valid at law 


4 See § 52 , ante. 


5 See § 43 , ante. 


252 HISTORY OF ENGLISH AND AMERICAN LAW 


as well as in equity when created by conveyance under the 
Statute of Uses. The possible exception was in the case of a 
contingent remainder after a term of years. The courts de¬ 
cided that, if a provision could be regarded as a contingent 
remainder, it would be enforced as such and not as a use.® 
Properly applied, as in the case of executory devises in wills, 
this rule would do no mischief; but the courts held that if a 
use was created in the form of a contingent remainder after 
a use for a term of years, it was void, since not supported by 
a freehold estate. 6 7 The same reasoning would have made void 
springing and shifting uses in all the other cases. It is clear 
that such a use could not operate as a contingent remainder, 
and, for that very reason, should be enforced as a use; but 
the courts held otherwise—an exception without the shadow of 
reason. This defect in the law has been remedied in part by 
statute. It is probable that the cases supporting this proposi¬ 
tion are no longer law, being overruled by cases holding that 
a like gift by will is good by executory devise. 8 

The result was that by merely making use of the new forms 
of conveying lands, which, as we have seen, quickly became 
general, displacing common law feoffments in all transfers of 
land inter vivos, 9 the owner could create any kind of future 
estate he pleased, or any succession of future estates on suc¬ 
cessive contingencies, subject only to the rule against perpetui¬ 
ties, the one possible exception being the case of a contingent 
use after a use for a term above referred to, which is now 
covered by the modern statutes. 10 


6 Sugden’s note to Gilbert’s Uses, 
172. 

7 lb., 165; Digby, Hist. Law Real 
Prop. (5th ed.), 361. 

840, 41 Viet., ch. 33, (1877). Ad¬ 

ams v. Savage, 2 Ld. Raym. 854, 

and Rawley v. Holland, 22 Vin., 
Abr., 189, 2 Cas. Abr., 753, are the 
two cases so holding. Professor 
Gray says these cases have been 


overruled by the cases holding that 
such a gift is a good executory 
devise when created by will. Gray, 
Perp. (2nd ed.), 51. 

9 §43, ante. 

10 On the history of springing and 
shifting and conditional uses gen¬ 
erally, see Digby, Hist. Law Real 
Prop. (5th ed.), 357-362. 


FUTURE ESTATES 


253 


Powers originated as uses. Before the Statute of Uses, the 
owner could convey his land to a trustee to hold to the use of 
such person as might be named by X, any third person. On 
the naming of the appointee by X, equity would compel the 
trustee to hold the property to his use; or the trustee might 
be directed to hold to the use of A for life or in fee, but on 
his death, or his death without issue in the second case, to the 
use of any person or persons named by A either by his deed 
or will. The trustee would hold for the use of such persons 
as A might appoint. The statute operated on such uses aris¬ 
ing in the appointees after the appointment had been made and 
instantly converted them into legal estates . 11 After the statute, 
the creating of a power by deed operating under the statute 
gave the appointee the legal estate by operation of the deed of 
the original donor, not by virtue of the instrument actually 
appointing him as the person to take the property. When 
they could be given effect as remainders after precedent estates 
for life, they took effect as remainders, otherwise as executory 
interests, shifting or springing uses, or as executory devises 
when created by will, in the latter case the intent of the de¬ 
visor being given effect as in other cases of executory future 
interests created by will . 12 


§64. Executory devises .—These are the same kind of fu¬ 
ture estates, void by common law conveyance in any of the 
above cases because of the putting of seisin in abeyance or 
because of the limiting of a fee upon a fee or upon life estate 
in derogation thereof. In each of these cases, the executory 
future interest was valid as an executory devise if created by 
will. Wills of real property were void from the latter part of 


11 Digby, Hist. Law Real Prop. 
(5th ed.), 362, 363; Kent, Comm., 
IV, 316. “In truth they [powers] 
were future uses to be designated 
by the person to whom the power 
was given; these, when they arose, 


equity compelled the trustees to ob¬ 
serve,” Sugden, Powers, 11. 

12 See Sugden, Powers, m-115, 
147, 196. On powers generally see 
Walsh, Real Prop., ch. 14. 


HISTORY OF ENGLISH AND AMERICAN LAW 


the twelfth century down to 1540 when the Statue of Wills 
was enacted, except that by the custom of gavelkind and by 
the custom of certain localities, as of London, land could be 
devised by will. In these special cases, prior to the Statute 
of Wills, land passed by will without livery; and it was held 
in several cases that a power in executors to sell the testator’s 
land was valid, title remaining in the heir or devisee until the 
exercise of the power of sale by the executor, but that, when 
sold by the executor, the land passed by virtue of the will with¬ 
out a deed from the executor. 1 Therefore the power to create 
future estates which were in no sense remainders was recog¬ 
nized long before the Statute of Wills. That statute, enacted 
in 1540, five years after the Statute of Uses, was the direct 
result of the earlier statute. The Statute of Uses by express 
terms ended the practice of devising land by means of uses 
through a trustee to the uses named in the owner’s will. It 
was quickly demonstrated that the power to devise land could 
not be so easily taken away, as the general demand therefor 
resulted in the enactment of the Statute of Wills by Parlia¬ 
ment. It had already been decided that the rules of the com¬ 
mon law making future estates void which would put seisin 
in abeyance did not apply to wills, as land did not pass by 
livery in transfers by will, so that the seisin was in the heir 
of the testator until the taking effect of the future estate. 
Therefore the courts held that an estate by will to arise in 
the future without a precedent estate was good, like a spring¬ 
ing use, and a contingent remainder after a term of years by 
will was also good, since seisin was not put in abeyance. 2 Be- 


§64. 1 Litt., §§169, 585, 586; 19 

Henry VI, 23; Co. Lift., 113a; Far- 
ington v. Darrel, 9 Henry VI, 23, 
24. In cases other than powers of 
sale by executors, executory devises 
were apparently not held good be¬ 
fore the Statute. See Gray, Perp. 
(2nd ed.), 102, note 5. 


2 As to a contingent remainder 
after a term of years: Gore v. 
Gore, 2 P. Wms. 28; Haywood v. 
Stillingfleet, 1 Atk. 422, and other 
cases Gray, Perp. (2nd ed.), 51, 
note 3. 


FUTURE ESTATES 


255 


fore the Statute of Wills, it was held, at least in one case, in 
1537, that a fee upon a fee by will in land devisable by custom 
was bad, since the heir only could enter for breach of condi¬ 
tion. 3 Nevertheless, as wills by custom affected only a very 
small part of the country, these decisions seem to have had no 
effect; and the courts decided, since a fee upon a fee, or upon 
a life estate in derogation thereof, was valid when created 
by shifting use under the Statute of Uses, the same liberal rule 
should be applied in giving effect to such gifts in wills, in 
order to carry out the intention of the testator. Therefore 
these estates were given effect as executory devises when 
created by will. 4 We have already seen that powers created 
by will were good, the courts giving effect to the intention of 
the testator. The early cases of sales by executors under 
wills by custom above referred to are the earliest instances of 
legal estates arising by exercise of a power of sale or appoint¬ 
ment. 

The net result of the Statute of Uses (1535) and the 
Statute of Wills (1540) was that no limitation whatever ex¬ 
isted upon the creating of future estates of any kind, whether 
as remainders or executory interests, if created by will or by 
deed under the Statute of Uses. However, a future estate 
created as a remainder after a precedent estate in due form was 
the same thing and subject to the same rules whether created 
by common law conveyance or by will or deed under the 
Statute of Uses. No question could arise as to a vested re¬ 
mainder, since it was not subject to be defeated by the destruc¬ 
tion of the prior estate or by fine or recovery. A contingent 
remainder, however, created by will or by deed under the 
Statute of Uses, came under the same rules as contingent re¬ 
mainders created by common law conveyance. Therefore, if 
the contingency on which it depended did not happen before 

3 Prior of St. Bartholomew's 456, 457 ! Digby, Hist. Law Real 

Case, Dyer, 33a. Pr °P • < 5 * «<*.), 381, 382. 

4 Williams, Real Prop. (17th ed.), 


256 HISTORY OF ENGLISH AND AMERICAN LAW 


the termination of the prior life estate, the contingent remain¬ 
der was defeated. If the precedent life estate was destroyed 
by forfeiture for treason or felony or by merger with the 
reversion in fee, any contingent remainder dependent thereon 
was at once destroyed, since seisin would have been otherwise 
put in abeyance . 5 In spite of the fact that executory estates 
which put seisin in abeyance were constantly being created 
as uses and executory devises and were perfectly good both 
at law and in equity, requiring no precedent estate to support 
them, though livery of seisin had disappeared or was rapidly 
disappearing as a method of conveying land, though the put¬ 
ting of seisin in abeyance had become as common as executory 
estates, and therefore these rules were obsolete and without 
any actual reason for their continuance, nevertheless the 


5 Thus where land is devised to 
A for life, remainder to unborn 
persons, and A dies before the tes¬ 
tator, so that the life estate never 
arises in A, the gift to the unborn 
persons is an executory devise, as 
it would be void by conveyance at 
common law. But if A had sur¬ 
vived the testator and died before 
the remaindermen were born, the 
gift in remainder would be sup¬ 
ported at its creation by A’s life 
estate, and would therefore be a 
contingent remainder created by 
will. On A’s death, these remain¬ 
ders would be defeated because the 
remainderman had not b«en ascer¬ 
tained ; and the remainder con¬ 
tinued to be contingent when the 
supporting life estate ended. These 
remainders must stand or fall as 
remainders. They will not be con¬ 
verted into executory devises on 
the death of the life tenant in order 
to save them. Hopkins v. Hopkins, 
Cas. Temp. Talb., 44, (1734). 


On the other hand, an executory 
devise on its creation may become 
a contingent remainder, subject to 
the possible casualties of such re¬ 
mainders. Thus a gift to A for 
life, remainder to B in fee, but if 
B should die during A’s life, then 
to an unborn person in fee, the gift 
to the unborn person is an execu¬ 
tory devise, as it is a fee limited 
after the fee given to B. But on 
B’s death during A’s life, B’s re¬ 
mainder in fee disappearing, the 
remainder in the unborn person 
would become the usual case of a 
contingent remainder supported by 
a precedent life estate in A, and 
would be defeated by the destruc¬ 
tion of the prior life estate, or by 
a fine or recovery. Doe d. Harris 
v. Howell, 10 Barn & Cres. 191 
(1829). Destruction of contingent 
remainder by merger of life estate 
with reversion in fee, Egerton v. 
Massey, 3 C. B., N. S., 338. See 
Gray, Perp. (2nd ed.), §60. 


FUTURE ESTATES 


25 7 


courts continued to apply them to contingent remainders no 
matter how created. It was important, therefore, to dis¬ 
tinguish between a contingent remainder created by will and 
an executory devise. Any provision in a will creating a con¬ 
tingent interest to take effect in possession on the termination 
of a precedent life estate was given effect as a contingent re¬ 
mainder and was subject to defeat in exactly the same way as 
though created by common law conveyance. This was also 
true of all such remainders created by deed under the Statute 
of Uses. If the judges of the sixteenth and seventeenth cen¬ 
turies had been aware of their undoubted power to declare at 
an end ancient doctrines which had become obsolete, they 
would have abolished all distinction between contingent re¬ 
mainders and future executory estates, declaring at an end the 
ancient rules arising out of abeyance of seisin. Instead they 
piled technicality upon technicality, developing a wonderful 
structure of fine spun distinctions between executory estates 
and contingent remainders, keeping alive the ancient rules 
which, as we have already seen, never had any real basis other 
than the failure of the judges to evolve and grasp the idea of 
a conveyance of an interest in land without actual delivery of 
the land itself. There was no excuse for this after the Statute 
of Uses. A, conveying his land to B, the estate to arise in B 
at some future date, remained seised of the land during the 
interval elapsing before the vesting of B’s estate. The heirs 
of A were seised during the interval when the same estate was 
created by A’s will. The courts had these deeds and wills 
before them creating out of the fee and transferring future 
estates, incorporeal interests, the land itself remaining in the 
grantor or heirs of the devisor. They had come to the point 
of recognizing the effectual transfer of chattels by bill of sale 
without delivery, just as they had come to recognize the valid¬ 
ity of conveyances of land without delivery ©f seisin. 


18 


258 HISTORY OF ENGUSH AND AMERICAN LAW 


§65. Modern Law of Future Estates .—In England and 
most of the states, statutes now provide that the destruction 
of the precedent life estate by forfeiture or merger has no 
effect on the contingent remainders limited thereafter, the re¬ 
mainders taking effect on the happening of the contingencies 
on which they depend. 1 In the United States, the rule is gen¬ 
erally the same in case the precedent life estate ends by the 
death of the life tenant before the contingency happens on 
which the remainder depends, the remainder vesting on the 
happening of the contingency whether the life estate has ended 
or not. 2 Fines and recoveries were abolished in 1834 in Eng¬ 
land, 3 and have long since ceased to exist in the United States, 
so that contingent remainders are no longer subject to destruc¬ 
tion by their use. By statute, in England and in the United 
States, contingent remainders may now be conveyed as well 
as inherited or devised. 4 

The result of these statutes has been, first, to do away with 
all merely technical differences between vested and contingent 
remainders. Contingent remainders will now take effect in 
all cases, either in the original remainderman or in his heirs, 
devisee or assignee, where the condition precedent on which 
the remainder depends has happened. The only questions 
that can now arise with reference to a contingent remainder 
are these: Has the contingency on which it depends, happened ? 


§65. 1 8, 9 Viet., ch. 106, §6, 

(1844); N. Y. Real Prop. L., §57; 
Stimson, Am. Stat. L., §§1423, 1426. 
In Harris v. McElroy, 45 Pa. St. 
316, the court, without the aid of 
statute, repudiated the old rule as 
obsolete. In other states without 
this statutory provision, the same 
position would probably be taken, 
except in Illinois, where the old 
rule has been reasserted, Madison 
v. Larmon, 170 Ill. 65. 

* N. Y. Real Prop. L-, §58. See 


statutes referred to in preceding 
note, also statutes in Mass., Me., 
Mich., Wis., Ind., Minn., Cal., North 
& South Dakota, Va., W. Va., Ky., 
S. C., Ala., Miss., Tex., and prob¬ 
ably in other states, as covering the 
changes referred to in this and the 
preceding note. 

3 Stat. 3, 4 William IV, ch. 74. 

< 8 , 9 Viet., ch. 106, §6; N. Y. 
Real Prop. L., §59; N. J. Gen. St. 
(1895), 881. §138, and authorities 
cited, Walsh, Real Prop., 515, notes. 


FUTURE ESTATES 


259 


Does it violate the rule against perpetuities? Most of the 
cases in which controversy has arisen as to the distinction be¬ 
tween vested and contingent remainders, have been cases in 
which it was claimed that the remainders were defeated under 
the common law rules discussed above, or that they could not 
be conveyed. In all such cases today, it is quite immaterial 
whether the remainder be vested or not, the only questions 
now material being the questions above referred to. 

The other important result of these statutes has been to 
abolish all reason for distinguishing between contingent re¬ 
mainders and future executory estates, which are also made 
expressly alienable by the same statutes. Executory estates 
arising by executory devise or by way of use under the Statute 
of Uses did not, of course, depend on any precedent estate, 
and therefore could not be defeated by anything corresponding 
to destruction of a precedent estate, and the courts decided 
that they could not be defeated by fine or recovery. Contin¬ 
gent remainders became exactly the same as a result of these 
statutes, and the mass of legal learning evolved in distinguish¬ 
ing between them was thus legislated out of existence. 

By statute in many of the states, future executory estates 
may now be created by the simple modern statutory deed of 
grant by which land is universally conveyed today as well as 
by will or by deed under the Statute of Uses. 5 In other 
states, the courts have reached the same result without the 
aid of statute, the reason for the old rules having disappeared 
centuries ago with feudalism. 8 In these cases, the courts base 
their decision on the fact that conveyance by livery of seisin 
has either been expressly abolished or has become obsolete, 
and therefore the technical rules growing out of suspension 


8 N. Y. Real Prop. L., §§50, S 3 ; 
Stimson, Am. Stat. L., §§1421. 1426. 
See statutes to same effect in Ind., 
Mich., Wis., Ia., Minn., Neb., N. 
Dakota, S. Dakota, Cal., Va., W. 
Va., Ky., Miss., Tex., and Ala. 


“Wyman v. Brown, 50 Me. 139; 
Abbott v. Holway, 72 Me. 298; 
Shackelton v. Sebree, 86 Ill. 616; 
Schledowsky v. Arbuckle, 50 Minn. 
475; Borland v. Marshall, 2 Oh. St. 
308. 


260 HISTORY OF ENGLISH AND AMERICAN LAW 


of seisin have no longer any application and must be discarded 
as not applying to present conditions. Nothing could better 
illustrate the extreme technicality of the law of the seventeenth 
and eighteenth centuries than the blind adherence to these 
technical rules based on suspension of seisin in cases of spring¬ 
ing future interests, and on no reason whatever in cases of a 
fee upon a fee or upon a life estate in derogation thereof, in 
the face of the fact that all the forbidden estates were freely 
created by will, or by deed under the Statute of Uses, and that 
all reason for the rules growing out of abeyance of seisin dis¬ 
appeared with conveyance by livery and the substitution there¬ 
for of conveyance by deed. The principle of healthy growth 
inherent in the law gives the courts the power to cast out 
obsolete rules which do not meet the needs of a developing 
social and economic system. It may be fairly assumed that, 
in the few states where this mass of legal rubbish has not yet 
been expressly abolished by statute, the courts will declare 
these rules as no longer in existence where they have not 
already done so. 

The net result is that the present law of future estates 
raises only these two questions: ist, Is the future interest 
(whether a remainder or an executory interest is immaterial) 
subject to a contingency which must happen before the donee 
thereof can enter upon the enjoyment of his property, and if 
so has the contingency happened? and 2nd, Does the future 
interest violate the rule against perpetuities? The first ques¬ 
tion presents no difficulties, involving proof that the precedent 
estates have ended and the contingency or contingencies have 
happened on which the remainder depends. The rule against 
perpetuities, restricting the creation of future contingent in¬ 
terests, is the modern law of future estates. 

§66. The Rule in Shelley’s Case .—This rule of construc¬ 
tion, that a gift to A for life, remainder to his heirs, must be 
construed as a gift to A and his heirs in fee, was actually 


FUTURE ESTATES 


261 


established as law long before Shelley’s Case. 1 Mr. Holds- 
worth gives the best and clearest account of the history of 
this rule. 2 A case in 2, 3, Edward II, 4-7, indicates that the 
rule was not then established law. 3 In 1365, the rule was 
stated in clear terms, and a case was decided which turned on 
the rule in 1367. 4 These and other cases showed that the 
reasons actuating the courts to adopt this rule were partly a 
strong tendency to favor free alienation and partly a desire to 
preserve his relief to the lord. Mr. Williams says that the 
rule is to be explained by the fact that, before the Statute 
Quia Emptores, conveyances could not be made without the 
lord’s consent, and, as the right of inheritance of the heir was 
not easily or usually defeated in practice, therefore a gift to 
a person for life, remainder to his heirs, must have been very 
little different from a gift to him and his heirs. 5 The diffi¬ 
culty with this is that, in the first place, the lord’s actual con¬ 
trol over the tenant’s power to convey was probably slight in 
the thirteenth century and before, as explained in a former 
chapter, 6 and, in the second place, that we find the rule emerg¬ 
ing for the first time as definitely a part of the law in the latter 
half of the fourteenth century, nearly a hundred years after 
the Statute Quia Emptores removed any right to veto aliena¬ 
tion on the part of the lord. 

On the whole, we are safe in concluding that the rule is 
merely another illustration of the highly technical attitude of 
the courts in the fourteenth and fifteenth centuries, mere schol¬ 
astic logic losing sight of actualities. They interpreted the 
word “heirs” in the technical sense as describing the successive 


§66. 1 1 Coke 94- 
2 Holdsworth, Hist. Eng. Law, 
III, 93 , 94 - 

8 Stanton J., said (p. 7) : “First 
you limit to Roger for the term of 
his life and afterwards to the heirs 
of Roger of his body begotten, so 
that his heirs get a fee tail by means 


of the conusance. This is not rea¬ 
son.” 

4 Y.B. 38 Edward III, Mich., 26; 
Y.B. 40 Edward III, Hil., pi. 18. 

5 Williams, Real Prop. (17th ed.), 
398 , 399 - 

6 See §37, ante. 


262 


HISTORY OF ENGLISH AND AMERICAN LAW 


inheritors of the feoffee’s land from generation to generation 
indefinitely, not as a class of actual persons who would be 
ascertained on his death; and, in that sense, it was a mere 
word of limitation defining an estate in fee, since successive 
gifts to the heirs from generation to generation as purchasers 
could hardly have been intended. This appears clearly enough 
in a gift to A for life, remainder to his heir. Here the heir 
took a remainder, and A took a life estate, the word “heir” 
being necessarily limited to one person definitely, and not an 
indefinite succession of persons for all time. 7 

In the United States, the rule has been abolished by statute 
in many states. 8 In some states, the rule has been abolished 
as to such gifts by will, but is retained in cases of deeds. 9 In a 
few states it is still treated as law, defended in some cases and 
criticized in others. 10 When we remember that the word 
“heirs” is no longer necessary to create a fee either in deeds 
or wills, and that primogeniture has never existed in this 
country, it is difficult to understand how any court can be 
induced to tolerate as law a rule of construction which so 
obviously defeats the real intent of the grantor or devisor. 


§67. Future Interests in Personal Property .—A term of 
years, or chattel real, may be created to begin at a future day, 
under the ancient common law as well as by modern law, as 
a tenant for years is not seised, and therefore no suspension 


T Archer’s Case, i Coke 63b; Ev¬ 
ans v. Evans, 2 Ch. 173. No doubt 
the rule of primogeniture had much 
to do with this interpretation, and 
the continued existence of the rule. 

8 The heirs take remainders ac¬ 
cording to the language of the deed 
or will on the life tenant’s death. 
N. Y. Real Prop. L., §54; Mass. 
Pub. St., ch. 126, §4; 1 Stimson, 


Am. Stat. L., §1406. See similar 
statutes in Cal., Mich., Minn., Wis., 
W. Va., Miss., and the Dakotas. 

9 See statutes of N. J., N. H., 
Kan., and Or.; Stimson, Am. Stat. 
L.. §1406. 

18 Connor v. Gardner, 230 Ill. 258; 
Garver v. Clouser, 218 Pa. St. 6ii, 
and other , cases cited Walsh, Real 
Prop., 523, note 3, and 521, note 8. 


FUTURE ESTATES 


263 


of the seisin is involved. 1 The incorrigible technicality of the 
common law of the period of Littleton and Coke and thereafter 
is again illustrated by its treatment of life estates in a term 
of years. Since a life estate is an estate of freehold, it was 
regarded as necessarily greater than a term of years, no matter 
how long the term might be, and therefore an assignment of 
a term to A for life, remainder to B, transferred the entire 
term to A, so that on A’s death the term passed to his personal 
representative, the gift to B being void. 2 For the same rea¬ 
son, a grant by a termor to take effect on his own death was 
void as an attempt to reserve a life estate in the term. 3 But 
a grant of a term after the death of a stranger was good, as 
a future limitation of a term, no estate for life being given to 
the stranger, and there being no presumption that a stated 
person might not die within the term. 4 In England, this 
ancient scholastic logic, devoid of sense and in complete dis¬ 
regard of facts, is still law. 5 In the United States, statutes in 
some states expressly permit the creation of life estates in 
terms with remainders over; 6 and, in the few cases where the 
question has arisen, the courts have held these limitations to 
be good. 7 As life interests in chattels followed by remainders 
are valid in all the states except in North Carolina, there can 
be no doubt that the courts will apply the same rules to ten¬ 
ancies for years. 

These gifts were good when created by will. The first sug¬ 
gestion of this was in 1535 ; 8 and, in Welcden v. Elkington, 3 


§67. 1 Barwick’s Case, 5 Coke 

93b, 94b. On this topic generally 
see Gray, Perp. (2nd ed.), 59 - 75 - 
2 Welcden v. Elkington, Plowd., 
519, 520, the court saying: “For in¬ 
asmuch as a time for life is greater 
than a time for years, therefore the 
lesser is included in the greater.” 
See also Woodcock v. Woodcock, 
Cro. Eliz., 795; Chaefort v. Okes, 
1 Ch. Cas., 239; Jermyn v. Orchard, 


Show. P. C. 199. 

3 Welcden v. Elkington, Plowd., 
519 , 520. 

4 Rayman v. Gold, Moore, 635. 

5 See modern cases in note 2, 
supra. 

8 N. Y. Real Prop. L., §50. 

7 Culbreth v. Smith, 69 Md. 450; 
Cf. Arthur v. Cole, 56 Md. 100. 

8 Anon., Dyer 7a. 

9 Plowd., 519. 


264 HISTORY OF ENGLISH AND AMERICAN LAW 


the rule was ex-pressly stated. After some decisions and dicta 
for and against permitting these gifts as executory devises, the 
law permitting them was finally settled in Coke’s time. 10 The 
courts did this by reversing the order of the gifts so as to give 
effect to the testator’s intent, treating the provision as an exe¬ 
cutory devise to B to arise on A’s death, and a gift of the 
term to A, subject to the executory devise to B. Thus the 
courts avoided the obnoxious life estate in A, though A had 
a life estate in the term of years none the less. 

As the Statute of Uses did not apply to tenancies for years 
or to chattels, these interests were not good by way of use at 
law. Of course, they have always been good in equity, and 
are commonly created by way of trust in England today. 11 

We shall see later that a gift of a chattel was not good 
without delivery at early common law, and that subsequently 
a gift by deed without delivery was good. 12 Therefore the 
prevailing English view is and has been that a parol gift of a 
future interest in chattels is bad, though it is good by deed 
or for a valuable consideration, and can be made to take effect 
at any time. 13 Mr. Williams says that a life estate followed 
by a remainder in a chattel was and is impossible in England 
inter vivos; but Professor Gray points out that, though this 
seems to be commonly accepted by English lawyers, there is 
no authority for it, and Blackstone is directly contra. 14 There 
can be no doubt that Blackstone’s view is right on principle. 
In the United States, the rule adopted everywhere except in 
South Carolina is in accord with Blackstone’s statement, life 


10 Manfling’s Case, 8 Coke 94b; 
Lampet’s Case, 10 Coke 46b. 

11 See Gray, Perp. (2nd ed.), 60, 
61. 

12 See §81, post. 

13 Bracton, 16a; Jenk., 109; Irons 
v. Smallpiece, 2 B. & Aid. 551. For 
development of rule see Gray, Perp. 
(2nd ed.), 61, 62, note 9. 


14 Williams, Pers. Prop. (15th 
ed.), 340 et seq.; Gray, Perp. (2nd 
ed.), 578. Blackstone said, (Bl., 
Comm., II, 398) : “If a man either 
by deed or will limits his books or 
furniture to A for life, with re¬ 
mainder over to B, this remainder 
is good.” 


FUTURE ESTATES 


265 

interests followed by remainders being good whether created 
by deed or by will. 15 

Gifts by will of this kind were given effect in England 
according to the early cases by treating the gift as passing the 
property in the chattel to B, the remainderman, subject to a 
mere right of use and possession in A, named as life tenant. 
A did not get a life estate but a mere right of use and enjoy¬ 
ment as bailee, the ownership of the chattel being in B. 16 The 
modern view of the English text-writers is that A takes the 
property, subject to an executory devise over to B on A’s 
death. As Professor Gray makes clear, this position is not 
supported by the cases, and is based on a false analogy to 
terms for years. In that case, the rule grew out of a pure 
technicality, that a life estate could not be created in a term; 
and equity avoided this by giving effect to the gift in order to 
carry out the intent of the testator. In these cases, there is 
no such question, nor is there any reason why the same rule 
should not apply to both wills and deeds of chattels. The 
common law placed no restriction upon creating interests of 
any kind in chattels. There is no reason why a gift to A for 
life, remainder to B in fee, should not be construed in accord¬ 
ance with its clear terms as giving A the use and enjoyment 
in effect as bailee for life, with the ownership or the property 
of the chattel in B subject only to A’s right. According to 
the actual cases and disregarding the English texts except 
Blackstone, the fair conclusion is that there is little difference 
between the rules prevailing in the United States and England 
with reference to this question. 

Of course, where chattels are given to A, then over to an¬ 
other on the happening of a contingency, the gift over is 
executory, exactly like a fee upon a fee in the case of land. 

15 Gray, Perp. (2nd ed.), 68-73, 19 See cases cited Gray, Perp. 

and cases there cited. (2nd ed.), 65, 66. 


266 HISTORY OF ENGUSH AND AMERICAN EAW 

It is perfectly valid whether created by deed or by will, subject 
only to the rule against perpetuities. 17 

It is clear, therefore, that no restrictions are placed today 
upon the creation of future interests in either real or personal 
property, other than the rule against perpetuities, and apart 
from questions of mere interpretation as to the gifts created, 
and questions of the happening of conditions on which future 
interests may depend, the only question arising today with 
reference to future estates is whether or not they violate the 
rule against perpetuities. 

§68. The Rule Against Perpetuities .—This rule, now the 
one restriction upon the creation of future estates, the applica¬ 
tion of which constitutes most of the modern law affecting 
them, is as follows: Every future interest must vest, if at all, 
within a period measured by the lives of definite persons in 
existence at the time of its creation, and twenty-one years 
thereafter; and every such interest is void in its creation if 
it may by any possibility vest at a more remote time. 1 

The object of the rule is to prevent the tying up of property 
for longer than a reasonable time through future contingent 
interests which either cannot be conveyed before they vest, or 
which tend to discourage alienation because their value cannot 
be determined with any certainty, and because the owner of 
such a possible interest, with little to lose and everything to 
gain, is in a position to extort a disproportionate amount for 
the conveyance or release of his interest, his concurrence being 
necessary to any absolute alienation of the property. 2 The 
rule is directed against too remote vesting of future contingent 
interests, not against suspension of the absolute power of 
alienation by future interests. Some cases and dicta sustain 
the contention that preventing suspension of the absolute 

17 Gray , Perp. (2nd ed.), 684, 685, §68. '•Gray, Perp. (2nd ed.), 

note. §201 et seq. 

2 Gray, Perp ., §§268, 269, et seq 


FUTURE ESTATES 


267 


power of alienation for too long a time by means of future 
estates was the object of the rule; but these cases have been 
overruled, and, although the rule might have stopped there, 
it has been unquestionably extended so as to cover all cases of 
too remote vesting, whether or not there is a suspension of the 
absolute power of alienation. 3 

The rule applies only to contingent future estates. It has 
no application to present estates or vested future estates. 
Therefore the distinction between vested and contingent future 
interests is still very important, since it is constantly involved 
in the application of this rule. 4 

The object here is to outline very briefly the history of the 
development of the rule, without any attempt to explain its 
application. 

Nothing corresponding in any way to the rule against per¬ 
petuities existed prior to the Statute of Uses (1535) and the 
Statute of Wills (1540). The only future contingent inter¬ 
ests that existed before executory estates came in under those 
Statutes were contingent remainders and rights of entry and 
of reverter. It will be recalled that contingent remainders 
were regarded as invalid during the fourteenth and the first 
half of the fifteenth centuries; so they were recognized, and 
then only in a limited and doubtful way, for only about eighty- 
five or ninety years preceding the Statute of Uses. No objec¬ 
tion because of remoteness of vesting was raised to rights 
of entry for breach of condition or of reverter after estates in 
fee upon limitation. Contingent remainders could be de¬ 
stroyed at any time by fine or common recovery; and they had 
to vest, if at all, during the continuance of the precedent life 
estate, so that they did not prevent absolute alienation of the 

8 Gray, Perp., §§270-277. Suspen- the power to convey an absolute 
sion of the absolute power of alien- estate in fee would not exist be- 

ation exists where a future estate cause of the future estate, 

is created which cannot be con- 4 Gray, Perp., §268. 
veyed, released or destroyed, so that 


268 HISTORY OT ENGLISH AND AMERICAN LAW 


property. It is true that contingent remainders might have 
been created which would violate the modern rule; but appar¬ 
ently none of that kind came up for consideration by the 
courts, and, if they had, there would probably be no objection 
to them as interfering with alienation, as they could be de¬ 
stroyed by fine or recovery and the land be conveyed absolutely 
in fee simple in any case. Executory devises arose only in 
the few localities where land was devisable by custom; remote 
future interests in terms for years were rare; in fact, the rule 
did not exist because no need of it existed as a practical matter 
until the development of executory estates under the Statute 
of Uses and the Statute of Wills. 5 6 

The courts recognized springing uses for the first time three 
years after the statute.® In 1552, we find a case recognizing 
a shifting use. 7 Executory devises were recognized in 1555, 
and they became firmly established in the law by a series of 
cases extending over the same period. 8 

The term “perpetuity” appears first in connection with at¬ 
tempts to prevent the barring of estates tail by a fine or re¬ 
covery. Direct restraints on alienation had long been void 
as repugnant to the estate conveyed; and conditions in general 
restraint of alienation were held void for the same reason, as 
already pointed out in the chapter on conditional estates. 9 
Estates tail would have effectually prevented alienation except 
for the fact that they could be barred by fine or recovery and 
thereafter conveyed absolutely. In the Essay on the Use of 
the Lazv (1629), it was said: “There is started up a device 
called perpetuity; which is an entail with an addition of a 
proviso conditional tied to his estates, not to put away the 

5 Gray, Perp., §134- and early part of seventeenth cen- 

6 Anon., Brooke, Abr. Feoff, al turies in Gray, Perp., in, notes 3, 4. 
Uses, 340, pi. 50; Gray, Perp., no. 8 See Gray, Perp., 112, notes 1 to 

7 Anon., Brooke, Abr., Feoff, al 5 inc. 

Uses, 339, pi. 30. See additional 9 See §59, note 4, ante. 

■cases of latter part of the sixteenth 


FUTURE ESTATES 


269 


land from the next heir, and, if he do, to forfeit his own 
estate. Which perpetuities, if they should stand, would bring 
in all the former inconveniences of entails that were cut off 
by the former mentioned statutes.” 10 Cases decided just at 
the close of the sixteenth century declared these conditions 
void as repugnant, and in Corbet’s Case the word “perpetui¬ 
ties” was used as applying to this situation. 11 

An attempt to tie up land by remote contingent remainders 
after a life estate created by way of use, that is by conveyance 
under the Statute of Uses, in the hope that the courts would 
hold them indestructible by fine or recovery or by merger of 
the life estate, because created under the Statute, was defeated 
in Chudleigh’s Case, 12 the court holding that contingent re¬ 
mainders, no matter how created, could be destroyed by the 
life tenant. Conditional limitations (or shifting uses) were 
first thought to be destructible by fine or recovery like contin¬ 
gent remainders; 13 but it was finally established by cases in¬ 
volving the creation of future executory interests in terms of 
years, that executory interests could not be destroyed by fine 
or recovery. 14 

The indestructibility of executory estates made it certain 
that eventually their creation would be limited in some way. 
Nearly all the cases touching this question that followed, up to 
the Duke of Norfolk’s Case (1681), in which the rule against 
perpetuities was at last formulated, were limitations of terms 
for years. The principle running through these cases seems to 
have been that, after a gift of a term to A, no gift over to 
another was good on general failure of A’s issue, even though 


10 Bacon, Works (Spedding’s 
ed.), VII, 491. Gray, Perp., 114. 

11 Germin v. Ascot, Moore 364, 
and Chalmeley v. Humble, id,., 592, 
( 1595 ); Corbet’s Case, 1 Coke 83b, 
( 1599 ). 

12 1 Coke 120a. 

13 See cases decided from 1574 to 


1595, cited and discussed Gray, 
Perp. (2nd ed.), 116, 117. 

14 Manning’s Case, 8 Coke 94b 
(1609); Lampet’s Case, 10 Coke 
46b (1612) ; Pells v. Brown, Cro. 
Jac., 590, (1620) ; Gray, Perp., 121, 
122. 


27 o 


HISTORY OF ENGUSH AND AMERICAN LAW 


the failure of issue on which the gift over was to occur was 
to take place within A’s life, or other life in being. Remote¬ 
ness of vesting as tending to a perpetuity was not considered, 
but rather the inalienability of the estate, since the executory 
gift over could not be destroyed. 15 Successive limitations to 
persons in being were good; but whether a limitation over to 
a person not in being was good or not, was a doubtful matter. 
In the Duke of Norfolk’s Case, 1681, 1 * a trust of a long term 
was made in favor of the second son of the settlor and his 
heirs male, but, if the first son should die without issue, then 
in trust for the third son. This was held to be a good limita¬ 
tion over based on a contingency bound to happen within a 
life in being. Lord Nottingham pointed out that a contingent 
limitation of a term to take effect during or at the end of an 
interest for life was admittedly good; that a gift to the first 
taker and his heirs, or to him outright with a limitation over 
on a contingency bound to happen within the life of a living 
person, did not involve a perpetuity any more than the first 
case. This overruled the earlier cases holding that the limita¬ 
tion over in the latter case was void. The rule against per¬ 
petuities as initiated in this case permitted the creation of 
future executory interests dependent on a contingency bound 
to happen within the life time of some person then in being. 

In 1734, the point was decided that the period of suspension 
of the vesting of the future executory interest should be ex¬ 
tended to include the period of gestation of the child who was 
to take in addition to a life in being, where the father died 
before the birth of the child. 17 Two years later, the period 
was further extended by including the actual minority of a 
child of a living person, the executory gift being to such child 
upon his attaining the age of twenty-one. 18 Lord Mansfield 

15 Gray, Perp. (2nd ed.), 129-133. 17 Gore v. Gore, 2 P. Wms. 64 

16 Ch. Cas., Ill, 1; sub nom. 2 Barnard, K. B., 212. 

Howard v. Norfolk, 2 Ch. Rep. 229. 18 Stephens v. Stephens, Cas 


FUTURE ESTATES 


271 


argued in a later case that this did not make any real extension 
of the period because the child could not convey until attaining 
twenty-one even if the gift were to him absolutely rather than 
upon his attaining twenty-one. 19 

The question whether an executory estate could be limited 
on a contingency not measured by a life in being, but bound 
to happen if at all within a stated limited period was not 
finally settled until 1832. In 1698, not long after the Duke 
of Norfolk’s Case, the court decided that a fee upon a fee to 
take effect on payment of £4,000 to the heir of the first tenant 
in fee by the second tenant in fee within twelve months, was 
good, since the contingency on which the second fee depended 
must happen within one year, a reasonable time, causing no 
more inconvenience than a contingency measured by a life or 
lives in being. 20 This was followed by a similar case involv¬ 
ing payment of a sum of money within three months after the 
death of a person in being as the condition on which the ex¬ 
ecutory estate depended. 21 The case of Cadell v. Palmer, 
finally decided in 1832, settled the rule in its final form by 
deciding that the period within which a future contingent 
interest must vest is measured by a life or lives in being plus 
the period of gestation of a posthumous child, plus twenty- 
one years, without reference to whether a minority of any 
person is involved or not. 22 

The application of the rule constitutes the modern law of 
future estates; which is, of course, outside the scope of this 


Temp. Talb., 228; W. Kel. 168; 2 
Barnard, K. B., 375. 

19 Doe v. Fonnereau, 2 Doug. 487, 
508. 

20 Loyd v. Carew, Prec. Ch., 72, 
73, 74, 106, Show., P. C., 137. 

21 Marks v. Marks, 10 Mod. 419, 
(1718). 


22 Cl. & F. 411. Decision by the 
Vice-Chancellor in 1826, 1 Sim. 267. 
For a detailed consideration of the 
cases marking the development of 
the rule, see Gray, Perp. (2nd ed.), 
ch. 5. 


272 


HISTORY OF ENGLISH AND AMERICAN LAW 


historical summary. Statutory changes of the rule in New 
York and some of the other states are referred to and dis¬ 
cussed in the works cited in the notes. 28 

23 Gray, Perp. (2nd ed.), 541-546; 

Walsh, Real Prop., 589-612. 


CHAPTER XIII 


INCORPOREAL INTERESTS 


§6p. Incorporeal Interests in the Thirteenth Century .— 
The word “incorporeal” as applied to property rights desig¬ 
nates those interests in land which carry with them no present 
possession or right of possession of the land involved. Future 
estates are, of course, incorporeal, being mere rights to future 
enjoyment without present ownership of the land as a physical 
thing. Rents, easements, and profits are more completely in¬ 
corporeal, as they never ripen, like future estates, into present 
ownership of the land. They always remain mere rights in 
land which is owned and possessed by another. The use of 
the term is sometimes criticized because all rights are neces¬ 
sarily incorporeal, including present rights of ownership and 
possession. It has been used by the law as designating prop¬ 
erty rights separated from ownership and possession, and so 
understood its use cannot reasonably be objected to. 1 

Incorporeal rights in the thirteenth century included not only 
rents, easements, and profits, but a considerable number of 
other rights, incident to land-ownership or connected with it 
in various ways. Blackstone mentions advowsons, tithes, of¬ 
fices, dignities, franchises, corodies or pensions, and annuities, 
in addition to rents, easements, and profits. 2 Any right of a 
transmissible nature, either connected with any piece of land 
or localized in some way, was apt to be treated as an actual 


§69. 1 Austin, 707, 708; Digby, 

Hist. Law Real Prop. (5th ed.), 
306, note. Mr. Williams says: “The 
student of any legal system, how¬ 
ever, must take it as he finds it. 
It is idle for him to find fault with 
ideas which have obtained actual 
currency therein, and which he is 


therefore bound to accept as ‘legal 
tender.’ If any such ideas conflict 
with his sense of what «ught to be, 
he should look for explanation to 
the history of the law.” Williams, 
Real Prop. (17th ed.), 4, note. 

2 Bl., Comm., II, 21. 


19 


274 


HISTORY OF ENGLISH AND AMERICAN LAW 


thing, a piece of property though intangible or incorporeal, and 
protected by the law as such. But the modern law of in¬ 
corporeal interests in land is practically limited to rents, profits, 
and easements; and their history will be traced in this chapter, 
after a very brief reference to the general situation of the law 
as it applied to incorporeal rights in the thirteenth century. 

The rights of lordship in land held by the lord’s tenants are 
first in importance. He was said to be seised of the land “in 
service”; but we have seen that this was nothing more than 
seisin of the sum total of incorporeal rights in the land which 
he could enforce against the tenant as owner of the land. 3 He 
was not seised of the physical land in any sense; his seisin was 
limited to the dues, services, and rents, due him from the 
land and from his tenants because of the tenure under which 
they owned the land. He could maintain a proprietory action 
against his tenant to establish his right, or an assize of novel 
disseisin if he had been receiving the rents and services but 
the tenant had recently “disseised” him thereof by resisting 
their collection or paying them to someone else. Instead of 
enforcing an obligation against the tenant as is done today, 
he simply recovered the thing, the interest in the land which 
he owned. This realism existed everywhere in the law of the 
thirteenth century and for a long time thereafter, and was 
used to accomplish many things now done by the enforcement 
of contractural rights. 4 The sum total of his rights of lord- 
ship as to third persons was his “manor.” Actions between 
the lord and third persons for the recovery of a manor were in 
form of the same nature as actions for the recovery of a piece 
of land ; they were “real” actions, seeking the recovery of a 
thing, though an incorporeal thing, the manor. 5 

We have heretofore noticed the assize of darrein present¬ 
ment created in Henry II’s time to protect the possessory right 

a See §24, ante. 

4 Poll. & Mait., Hist. Eng. Law, 

II, 124, 125. 


5 lb., 126, 127. 


INCORPOREAL INTERESTS 


275 


of the owner of an advowson or right to appoint a clergyman 
to a church.” The church, as property, was regarded as be¬ 
longing to God; the right to appoint the clergyman who was 
to preside over it was a valuable property right, involving 
seisin, disseisin, and real actions for its protection. 7 

Besides tenurial rents enforceable by the lord as one of his 
seigniorial rights, there were non-tenurial rents where no re¬ 
lation of tenure existed. Thus A, the owner of land, might 
grant to B a rent on his land for life or in fee. This was a 
favorite form of investment, rents being purchased in order 
to get an income on the money invested, interest on a loan 
being regarded as sinful. It was a rent-charge when en¬ 
forceable by distress, a rent-seck when not so enforceable. 
These terms developed later, but the rents in question were 
known in Bracton’s time. The ownership of the rent was de¬ 
termined in case of dispute like the ownership of any other 
piece of property. It was a thing, and protected as such, like 
the other incorporeal rights already spoken of. It was an 
interest in the land created by deed, and a livery of seisin was 
made by delivery of a penny or anything of value as seisin of 
the rent, before it came into effect as an existing right. 8 

Corodies and annuities, though treated as things for many 
purposes in the early law, were approaching the domain of 
obligation and contract. 9 Tithes, offices, dignities, and fran¬ 
chises need no treatment here, except to mention them as in¬ 
corporeal things of the same nature treated and protected on 
the same real basis as were other incorporeal rights. 

§70. Rents.—Kinds and Methods of Enforcement .—The 
doing away with tenure between grantor and grantee in fee 
by the Statute Quia Emptores (1285), prevented the creating 

« See §21, ante. 8 lb., 128-131. As to rents after 

7 Poll. & Mait., Hist. Eng. Law, Quia Emptores see next section. 

IT, 125 et seq. 9 Jb., 132, 133 - 


276 HISTORY OF ENGLISH AND AMERICAN LAW 


of new tenurial rents dependent upon tenure. 1 But grants 
of rent by the owner of the fee to a third person were known 
before the statute, as pointed out in the preceding section. 
Therefore express reservations of rent by the feoffor in fee 
were good if by deed, since what the owner may grant out of 
the fee he may reserve to himself when conveying the fee to 
another. The term “rent service” was applied to tenurial 
rents, whether created before the statute in the case of estates 
in fee, or before or after the statute when attached to estates 
for life or for years, tenure remaining unaffected by the statute 
between a reversioner and a tenant for life or for years. In 
these cases, the lord or reversioner could distrain for the rent 
by common right. 2 

The term “rent-charge” was applied to non-tenurial rents 
reserved or granted by deed as distinct incorporeal rights not 
dependent on tenure, if a clause expressly providing for dis¬ 
tress was inserted in the deed. If there was no such clause, 
it was called a “rent-seck,” or dry rent, without right of dis¬ 
tress. 3 In case of a feoffment in fee, the reservation had to be 
by deed; if not, it was void because of absence of tenure be¬ 
tween feoffor and feoffee after the statute. 4 

Rent in all these cases “issued out of the land”: the land 
owed the rent, and it was not at all necessary that anyone be 
bound personally to pay it. An express provision could always 
be inserted that the tenant should not be bound personally, 
but only the land should be charged. 5 The owner of the 
rent enforced it against the tenant personally by writ of an¬ 
nuity, demanding all arrears of annual rent overdue. This 
writ originated in Henry Ill’s reign, and was referred to by 
Bracton. 6 He enforced the rent against the land by a distress, 
entering and taking any“personal property he might find there. 7 

§70. 1 Litt., §§215, 216. 5 Litt., §220. 

2 Litt., §§213, 214. 6 Poll. & Mait, Hist. Eng. Law . 

3 Litt., §§217, 218. II, 130; Bracton, f. 203b. 

4 See note 1, supra. 7 Litt., §219. 


INCORPOREAL INTERESTS 


277 

The owner of rent-seck, in order to enforce his right at all, 
had to acquire “seisin” of the rent by receiving a payment of 
rent, or a penny or other thing of value in the name of seisin 
of the rent; otherwise he had no remedy. Having such 
“seisin,” a demand for the rent on the tenant and a refusal or 
failure to pay was a “disseisin” of the rent, on which the owner 
of the rent could maintain an assize of novel disseisin against 
the tenant, and recover his seisin of the rent, and incidentally 
all rent in arrear, damages, and costs. 8 Rents of all kinds, in¬ 
cluding rent-seck, were treated as distinct things protected by 
the different real actions, as the case might require, very much 
as though they were parcels of land, provided seisin of the rent 
was established. 9 

Prior to the Statute 32 Henry VIII, ch. 37, the action of 
debt could be brought to recover rent from a tenant for years, 
but not for rent due from freehold tenants, for life or in fee. 
Owners of such rents were therefore compelled to rely upon 
the appropriate real actions to recover arrears in rent. But 
where the life tenant died and the freehold was at an end, 
action of debt could be brought to recover rent which accrued 
before the life tenant’s death, there being no real action in 
such case to meet the situation. 10 Before that statute, no 
remedy existed in favor of the personal representative of the 
deceased owner of a freehold rent. 11 The statute above re¬ 
ferred to provided that his executor or administrator could 
maintain an action of debt against the tenant for life or in 
fee or against his personal representative in case of his death. 
It also provided for distress by the executor or administrator 
upon the land, either in the possession of the original tenant 
or of any other person taking from him by purchase, gift, or 
descent. 12 The statute did not apply to the case of rent due 

s Litt., §233. Ognell’s Case, 4 Coke 49; Thomas 

9 Litt., §§235, 236. v. Sylvester, 8 Q. B. 368. 

10 Case of Loringe’s Executors, 11 See preamble of the statute. 
Y.B. 26 Edward III, ro pi. 5; Bacon, 12 Co. Lift., 162a. 

Abr., Rent (K.), 6; Co. Lift., 162; 


278 HISTORY OF ENGLISH AND AMERICAN LAW 


from a tenant for years, as the executor or administrator of 
the landlord could maintain debt against him at common law. 13 

The Statute 8 Ann, ch. 14, §4, gave an action of debt for 
rent against a life tenant accruing during the continuance of 
the life estate, the Statute 32 Henry VIII, applying only to 
actions by personal representatives. Thus rent due from a 
tenant for life could be recovered like rent due from a tenant 
for years. It was subsequently held that this statute did not 
apply to a mere rent-charge for life created by grant or by 
will, the land remaining in the possession of the grantor of 
the rent-charge, the statute applying only to a life tenant 
holding subject to a rent reserved; and therefore such owner 
of a rent-charge for life could not enforce it by action of debt. 14 
Thus the writ of annuity was displaced by the action of debt 
in nearly all cases of the enforcement of rent by personal action 
against tenants for years and for life, before or after the death 
of the owner of the rent or the death of the tenant, except in 
the one case just referred to. In 1591, the court held that 
assumpsit could not be maintained for rent in arrear. There 
was no reference to an express promise to pay rent in that 
case. 16 In 1683, in a case where an express promise to pay 
rent was pleaded, the court decided that assumpsit could be 
maintained because of the express promise. 18 In this way, 


13 Turner v. Lee, (1637), Cro. 
Car., 471. 

In Lambert v. Austin, Cro. Eliz., 
332, it was assumed that the execu¬ 
tor of one owning a rent charge for 
his own life could distrain for rent 
which accrued during his life, 
though debt would lie against the 
tenant at law. The same- position 
was taken in Hool v. Bell, 1 Ld. 
Raym. 172, the Statute 32 Henry 
VIII being interpreted as covering 
the case, though not within the ex¬ 
act words of the statute. In Pres¬ 


cott v. Boucher, (1832), 3 B. & Ad. 
849, the position taken in Turner v. 
Lee, supra, was approved, the court 
holding that rent due from a tenant 
for years does not come within the 
statute, the common law giving a 
remedy in debt to the landlord in 
these cases. 

14 Webb v. Jiggs, 4 M. & S. 113. 

15 Reade v. Johnson (1591), Cro. 
Eliz., 242. 

16 Johnson v. May, 3 Lev. 150. 
In Fahlers v. Corbret, (1734), 2 
Barnard 386, it was contended that 


INCORPOREAL INTERESTS 


279 


the personal remedy for rent in arrear developed, from annuity 
through debt to contract. 

The Statute 11 George II, ch. 19, §14, provided for an 
action on the case for the use and occupation of land demised 
where the demise was by parol or in writing not under seal; 
and, where a specific rent was reserved in such demises, that 
fact should be used in such action as evidence of the amount 
of damages to be recovered. 

Apparently no cases were decided prior to this statute, in 
which the plaintiff sought to recover the reasonable value of 
the use and occupation of land, either in debt or indebitatus 
assumpsit though these actions brought to recover rent speci¬ 
fically reserved were common. The statute expressly pro¬ 
vides that an action on the case for use and occupation may be 
brought to recover the reasonable value, whether the lease re¬ 
serves a specific rent or not, the reservation of rent being used 
as evidence of the reasonable value. The courts decided that 
debt for the use and occupation would also lie, whether a 
specific rent had been reserved or not, though debt is not re¬ 
ferred to in the statute. The argument was that, on principle, 
debt for use and occupation would lie before the statute, though 
apparently it had not been used; that its use after the statute 
on the same terms as the action for use and occupation pro¬ 
vided for in the statute proves this. 17 It goes without saying 
that the relation of landlord and tenant must exist in all ac¬ 
tions under the statute for use and occupation. The action 
against an adverse possessor after ejectment is in tort for 
mesne profits. 

The gradual disappearance and final abolition of real actions, 
and the development of the modern lease with its express cov¬ 
enants or promises, has resulted in turning over to the law of 
contract the business of enforcing the collection of rent. The 

debt for rent should have been case of an express promise either 

brought instead of indebitatus as- action will lie. 

sumpsit, but the court held that in 17 Gibson v. Kirk, 12 B. 850. 


28 o 


HISTORY OF ENGLISH AND AMERICAN LAW 


modern action is brought on the express promise to pay rent 
contained in the lease, or for use and occupation, under the 
Statute of George II above referred to. 

This development of the law of contract making rents in 
practical effect contractual choses in action, and substituting 
contractual obligation for rents as incorporeal things, has left 
little trace of the old law by which rents were protected very 
much as was the land from which they issued. Nevertheless, 
the real nature of rent as an incorporeal interest issuing out 
of the land is as truly part of the law as ever, no matter how 
fully its enforcement has passed under the domain of contract. 
The development of the law of rents as affected by the assign¬ 
ment of terms and the conveyance of reversions will be dis¬ 
cussed in connection with covenants running with the land . 18 
It should be noted here, however, that the reason why the 
assignee of a term is bound to pay the rent accruing while he 
holds the term, is not because of any promise of his, but be¬ 
cause the rent is a burden passing with the term, one of the 
incidents of the tenure under which the land is held from the 
landlord; and the reason why the assignee is not liable for 
rent accruing after he has assigned the term to another is the 
same: he is bound by no promise, but only by the burden 
attaching to the land, and, after he has assigned the term to 
another, he becomes a complete stranger to the rent. It issues 
from the land as under the old law, binding the present tenant 
of the land because of his tenancy. 

§yi. Suspension and Extinguishment of Rent .—It was es¬ 
tablished law in Littleton’s time that rent service would be 
apportioned in cas^ of a conveyance of part of the land out of 
which the rent issued to a third person, or purchase of a part 
of said land by the lord. But a rent-charge would not be 
apportioned. It did not exist “of common right” because it 
was not incident to tenure but depended on an express grant 


18 See §76, post. 


INCORPOREAL INTERESTS 


281 


or reservation by deed. Therefore, if the owner of the rent 
acquired title to part of the land affected by a rent-charge, the 
rent merging in part was destroyed altogether . 1 An appor¬ 
tionment of a rent-charge was allowed, however, where part 
of the land passed by descent to the owner of the rent, by oper¬ 
ation of law, not by his own purchase . 2 But, as Coke pointed 
out, a rent-charge could be released in part to the tenant, or 
granted over in part to another, the apportionment being made 
by disposition of the rent, not by transfer of the land . 3 

The suspension of rent through eviction of the tenant from 
the whole or any part of the land arose from the nature of 
rent as an incorporeal interest issuing out of the land. The 
lord or landlord cannot have the rent and also the land out of 
which it is to issue. If he evicts the tenant by his wrongful 
act from part of the premises, the entire rent is suspended until 
the land is restored to the tenant, for no apportionment will 
be made in the lord’s or landlord’s favor under such circum¬ 
stances . 4 Acts of trespass such as the carrying away of an 
outbuilding by the landlord, do not affect rent, there being 
no eviction of the tenant. The tenant must be evicted from 
some part of the land, and if he is left in possession of the 
entire property, no matter how serious the trespass, rent is not 


§71. 1 Litt., §222. 

2 Litt., §224. 

2 Co. Litt., 148a. Coke further 
states that a grant of part of a 
reversion carries as incident to it 
part of the rent. This is a rent 
service, apportionable according to 
Littleton. By Statute, 22, 23 Viet., 
ch. 35, §10, a release of part of the 
land from a rent charge is made 
good and binding, and apportion¬ 
ment of rents of any kind may now 
be made by the Board of Agricul¬ 
ture in England on application of a 
person interested. See Williams, 
Real Prop. (17th ed.), 493 - 


4 Co. Litt., 148b; Arlough’s Case, 
9 Coke 135; Cibel & Hill’s Case 
(1588), 1 Leon no; Timbrell v. 
Bullock, Styles 446. Destruction of 
the premises by fire or by act of 
the public enemy did not relieve the 
tenant or the land from the rent, 
the landlord not being responsible 
for the ouster of the tenant. Para- 
dine v. Jane (1647), Aleyn 26; 
Smith v. Raleigh (1814), 3 Camp. 
513, (holding that an eviction from 
part of the land was a complete 
defense to an action for rent); 
Burn v. Phelps (1815), 1 Stark 94 - 


282 


HISTORY OF ENGLISH AND AMERICAN LAW 


suspended . 6 If, after eviction, the tenant re-enters, rent is 
restored, so that the next installment of rent accruing after 
the tenant’s possession has been restored may be recovered . 6 

Where the eviction of the tenant arises through the enforce¬ 
ment of a paramount title, the entire rent is suspended if the 
tenant is evicted from the entire leasehold premises; but if, 
evicted from only a part, the tenant elects to remain in posses¬ 
sion of the balance, the rent will be apportioned so that the 
tenant must pay a proportionate part for the land which he 
continues to occupy. There is no wilful wrong committed 
by the landlord in this case, so the law will apportion the rent 
in his favor . 7 In these cases, the tenant need not be physically 
ousted; if the real owner enters, the ouster is complete, and 
the tenant may continue under a new lease from him, without 
defending a suit or resisting his entry . 8 

It is now well settled that, in case of eviction from a part 
of the premises by the wrongful act of the landlord, he cannot 
recover for use and occupation for the balance of the premises 
because he cannot recover a proportionate part of the rent . 9 

The American cases have extended the doctrine of eviction 
as a defence to recovery of rent to cases where the tenant is 
ousted indirectly by any wrongful act of the landlord, as by 
maintaining a nuisance on adjoining premises which so inter¬ 
feres with the tenant’s enjoyment that he is justified as a- 


“Roper v. Lloyd (1678), T. 
Jones 148; Hunt v. Cope, Cowp. 
242; Bushell v. Lechmore, 1 Ld. 
Raym. 369. 

8 Timbrell v. Bullock, Styles 446; 
Page v. Parr, Styles, 432. 

7 6 Bacon, Abr., Rent. L.; Gilbert, 
Rents, 173; McLoughlin v. Craig, 7 
Ir. C. L. 117; Eccles. Comm’rs v. 
O’Connor, 9 Ir. C. L. 242. 

8 Morse v. Goddard, 13 Met. 
(Mass.) 177, and authorities there 
cited. 


9 Christopher v. Austin, 11 N. Y. 
216; Leishman v. White, 1 Allen 
(Mass.) 489. The only authority 
to the contrary is the unreported 
case of Stokes v. Cooper, referred 
to in a note to the case of Smith 
v. Raleigh, 3 Camp. 513, as decided 
by Dallas, J. at the Worcester Lent 
Assizes. The facts of that case are 
not given, and it is therefore no 
real authority against the well es¬ 
tablished rule. 


INCORPOREAL INTERESTS 


283 


reasonable man in moving , 10 or by failing to supply heat when 
he is under obligation to do so. The tenant must move out; 
if he remains in possession there is no eviction, and he will 
be limited to the action in tort or contract for the wrong 
committed against him by the landlord . 11 

Rent is suspended in these cases because the landlord has 
deprived the tenant of the land out of which the rent issues, 
not because of any doctrine arising out of breach of contract 
on the landlord’s part. Rent is extinguished altogether when 
the tenant’s term is destroyed, because rent can no longer 
issue from the land after the term has ceased to exist. Thus, 
where the sea breaks in and overflows part of the leasehold 
land, destroying the title of both landlord and tenant by con¬ 
verting the land under water into public land open to all for 
fishing and navigation, rent is extinguished pro tanto . 12 
Therefore a tenant of an apartment, office, loft, or other part 
of a building is relieved of the obligation to pay rent when 
the building is destroyed by fire. The subject-matter of the 
lease is absolutely extinguished, as the tenant has no interest 
in the space formerly occupied by his rooms or apartment in 
the destroyed building. Rent is not merely suspended but ex¬ 
tinguished, since nothing remains out of which it can issue . 13 


10 Dyett v. Pendleton, 8 Cowen 
(N. Y.) 727 (The Supreme Court 
of New York held [4 Cowen 581] 
that the forcing of the tenant to 
move by maintaining a place of 
prostitution in an adjoining apart¬ 
ment was not an eviction, because 
of the technicality that there had 
been no entry by the landlord as 
seemed to be required by the old 
precedents. The Court of Errors 
and Appeals decided that the de¬ 
priving of the tenant of the lease¬ 
hold property by the wrongful act 
of the landlord is the underlying 


reason for suspension of rent by 
eviction, and they brushed aside the 
technicality as to entry by the land¬ 
lord raised by the lower court) ; 
Edgerton v. Page, 20 N. Y. 281; 
Tallman v. Murphy, 120 N. Y. 345; 
Skally v. Shute, 132 Mass. 367, and 
other cases cited Walsh, Real Prop., 
326. 

11 Edgerton v. Page, 20 N. Y. 
281; Boreel v. Lawton, 90 N. Y. 
293; Dewitt v. Pierson, 112 Mass. 
8, and cases in preceding note. 

12 Rolle, Abr., 236. 

18 Graves v. Berden, 26 N. Y. 498. 


284 HISTORY OF ENGLISH AND AMERICAN LAW 


On the same principle, where land under lease is taken by 
eminent domain, rent is extinguished because the estate of both 
landlord and tenant is taken away. Nothing remains out of 
which rent can issue. 14 


§72. Profits .—A profit is an incorporeal right to enter up¬ 
on the land of another and to take and carry away a product 
or profit of the land, such as grass, fruit, timber or firewood, 
coal, iron or other mineral, fish or game. It is a profit appurt¬ 
enant when it exists solely for the benefit of another parcel of 
land, called the dominant estate, as the right to pasture cattle 
kept on the dominant estate, or the right to cut timber to 
repair buildings and fences or firewood for fuel on the domi¬ 
nant estate; it is a profit in gross when it belongs to a person 
and his heirs irrespective of his ownership of any dominant 
estate. 


14 Lodge v. Martin, 31 App. Div. 
(N. Y.) 13; O’Brien v. Ball, 119 
Mass. 29; Dyer v. Wightman, 66 
Pa. St. 425; Uhler v. Cowen, 192 
Pa. St. 443; Corrigan v. Chicago, 
144 Ill. 537. Some cases hold that, 
where part of the land is so taken, 
rent is not affected, the tenant be¬ 
ing compensated by the award. 
Stubbins v. Evanston, 136 Ill. 37; 
Patterson v. Boston, 37 Mass. 159. 
This is obviously bad law, since 
rent can no longer issue out of the 
land so taken, the relation of land¬ 
lord and tenatit having ceased pro 
tanto. From the practical stand¬ 
point it is a bad rule, the simpler 
and more direct solution being to 
award to the landlord the value of 
the fee of the land taken on the 
basis of rent ceasing pro tanto, the 
award to the tenant being on the 
same basis. The case of Folts v. 


Huntley, 7 Wend (N. Y.) 210, hold¬ 
ing that the award to the tenant 
will include the present value of the 
rent which he will be called on to 
pay during the term (in that case 
in fee), so that he will continue 
liable to the landlord for the rent, 
is thoroughly bad; first, because 
rent cannot continue after the ten¬ 
ancy has ceased to exist, and sec¬ 
ond, because of the obvious injus¬ 
tice to the landlord in compelling 
him to recover a considerable part 
of the award for his land in the 
form of periodic payment of rent 
for the duration of the lease, with¬ 
out any security arising out of the 
usual right to repossess himself of 
the term in case of non-payment. 
The same objections exist, pro 
tanto, to the cases where only a 
part of the land of the tenant is 
taken. 


INCORPOREAL INTERESTS 


285 


The earliest forms of profits were rights of common, viz., 
common of pasture, “of estovers, of turbary, of pischary, of 
digging for coals, minerals and the like.” 1 These go back to 
the rights in the common or waste enjoyed by members of 
the early village communities before the common had come to 
be regarded as part of the lord’s demesne. But with the de¬ 
velopment of lordship during Saxon times, and the extension 
of that principle to the entire country through feudalism fol¬ 
lowing the Conquest, the common became the property of the 
lord, and the rights of common, whatever they were before, 
became mere incorporeal rights in another’s land. 

As early as Glanville’s time, the rights of the commoner 
were protected by law, he having the right to maintain a novel 
disseisin against any one interfering with the enjoyment of 
his right. 2 The different rights of common are described in 
precise terms by Bracton. 3 It is clear that any of the different 


§72. 1 Co. Litt., 122a. Coke de¬ 

scribes four kinds of common of 
pasture, (a) common appendant, of 
common right because incident to 
tenure between lord and tenant 
prior to the Statute Quia Emptores, 
(b) common appurtenant, of the 
same nature but arising by grant or 
prescription after the statute, not by 
“common right.” (Compare with 
rent service and rent charge, §70, 
ante.) (c) common per cause de 
vicinage, mere casual right of com¬ 
mon when beasts escape into land 
not inclosed or otherwise used, 
barely a right since the adjoining 
owners could shut each other out 
by inclosing each his part of such 
land, and (d) common in gross, 
“so called for that it appertaineth 
to no land, and must be by writing 
or prescription.” 

In Co. Litt., 164b, Coke gives an 


illustration of a profit reserved by 
Lord Mount joy in a deed of bar¬ 
gain and sale of a right to dig turf, 
etc., and to dig for minerals in the 
land conveyed. The judges re¬ 
solved, (1) That Lord Mountjoy 
took an interest and inheritance to 
dig, etc. (2) That the bargainee, or 
owner in fee, could also dig for 
minerals without restriction. (3) 
That Lord Mountjoy might assign 
his interest to one person, but that 
he could not increase the burden by 
assigning part of his interest, or, 
if he assigned his entire interest to 
two or more, they could make no 
division of their right but dig to¬ 
gether as one person would, so as 
not to increase the burden upon the 
owner of the land. 

2 Glanv., lib. xiii, cap. 37. 

3 “Now a right of common is ac¬ 
quired by many titles. There is for 


286 


HISTORY OF ENGLISH AND AMERICAN LAW 


profits, called rights of common, could be created by grant or 
prescription in Bracton’s time not only in the common of the 
manor of the freehold tenant, but in any land in favor of any 
freeman, whether owner of other land which was benefitted or 
not. 4 Apparently, before the Statute of Merton, 5 the lord had 
no right to shut out his tenants having common appendant 
from any part of the waste; but that statute permitted him to 
appropriate part of it provided he left enough for his tenants 
in convenient places with appropriate means of access. 9 The 
statute applied to rights of common in the waste of the manor 
between lord and freehold tenant, common appendant, not to 
common appurtenant created by grant or prescription; nor did 
it apply in any case to common of turbary (cutting turf or 
peat) or to common of estovers (taking wood, heath, or 
fern). 7 

It was held at an early date that a profit could not arise by 
customary user in favor of all the inhabitants of a village, 
since the right to take profits in everyone would be destructive 
of the owner's right to enjoy his land; but a customary right by 
way of easement involving only a user of the servient estate 
was good. 8 Therefore a right of all the inhabitants to enter 


instance the title of a gift of the 
land to which it was appurtenant, 
as if anyone gives land with its 
appurtenances and with common of 
pasture, etc. It may also be created 
by purchase and sale, as when one 
has bought a right of common over 
another’s land so that it may be 
appurtenant tcT his tenement, al¬ 
though it be held of another fee 
or a different barony; and in that 
case it is created by the owner of 
the servient land. It may also be 
created by the lord of the land, as 
by means of fixed services. Also it 
may arise by reason of neighbor¬ 
hood as when one intercommons 


with his neighbor and his neighbor 
with him. Also it may be acquired 
without a grant by user for a long 
time with peaceful, continuous, and 
uninterrupted enjoyment of the 
right.” Bracton, f. 222. 

4 Poll. & Mait., Hist. Eng. Law, 
II, 144. 

5 20 Henry III, ch. 4. 

8 Bracton, f. 227. 

7 Coke, Inst., II, 87. 

8 Smith v. Gatewood (1607), Cro. 
Jac., 152, referring to 7 Edward IV, 
pi. 26; 15 Edward IV, pi. 29; 18 
Edward IV, pi. 3; 20 Edward IV, 
pi. 10; 18 Henry VIII, pi. 1. 


INCORPOREAL INTERESTS 


287 


and take water was sustained as a customary right arising out 
of immemorial user, since water is not part of the land, and 
the taking of it is not the taking of a profit; it is like a cus¬ 
tomary right in the people to dance on the village green . 9 

The profit cannot be appurtenant and in gross at the same 
time. It must be the one or the other. If appurtenant to a 
dominant estate so as to pass therewith to the grantee, heir, or 
devisee, it must be for the use and benefit of the land or to be 
used and enjoyed in connection with the land, as the right to 
cut firewood or timber to be actually used or consumed on the 
dominant estate. The ancient rights of common were nearly 
always appurtenant or appendant; the modern profits are usu¬ 
ally in gross, for the benefit of the owner in fee rather than 
for use in connection with the enjoyment of a dominant 
estate . 10 

Since a profit in gross is a distinct vested property right, it 
may be conveyed, devised, or inherited. There has never 
been any doubt of this in the law where the nature of the 
profit is such that it may be severed and enjoyed by two or 
more grantees, devisees, or heirs, as cotenants without in¬ 
creasing the burden upon the servient estate . 11 Of course a 
profit appurtenant to a dominant estate passes with the domi¬ 
nant estate to any person to whom it may be conveyed or 
devised or by whom it may be inherited. 

Closely related to this question of the assignability of a 
profit in gross is the question of the divisibility of a profit 
appurtenant when the dominant estate is divided by convey¬ 
ance, devise or inheritance among several persons. If the 
profit is indivisible, a conveyance of any part of the dominant 


9 Race v. Ward (1855), 4 E. & B. 
702. 

10 Bailey v. Stephens, 12 C. B., 
N. S., 91 (1862); Ackroyd v. Smith, 
10 C. B. 164; Pierce v. Keator, 70 
N. Y. 419. 

11 Co. Lift., 164b, digested in note 


I supra; Sir Francis Barrington’s 
Case, 8 Coke 136; Liford’s Case, 

II Coke 46b; Muskett v. Hill, 7 
Scott 855; Thomas v. Sorrell, 
Vaughan, 351. Digby, Hist. Law 
Real Prop. (5th ed.), 194- 


288 


HISTORY OF ENGLISH AND AMERICAN LAW 


estate will extinguish it completely, as was held in New York 
in the case of common of estovers . 12 The profit being in¬ 
severable, and manifestly not enforceable in favor of each por¬ 
tion of the severed property, it cannot be enforced at all. But 
where the profit can be measured so that it may be enjoyed 
by the owner of each part of the severed dominant estate pro 
rata , without increasing the burden on the servient estate, it 
will be apportioned . 13 

When the owner of the dominant estate releases a portion 
of the servient estate, or purchases part of it, the profit is 
extinguished even though it is apportionable, as the effect 
would be to surcharge the servient estate, casting the entire 
burden on what remains . 14 It is difficult to see, however, why 
the profit should not be regarded as reduced proportionately in 
these cases, so that the remaining part of the servient estate 
be subjected to the same proportionate burden as before, and 
no more. The suggestion in Tyrringham’s case that common 
appendant was apportionable but not common appurtenant, 
was dicta only, based on no valid reason other than a prejudice 
against interests not “of common right,” and must be dis¬ 
missed as never accepted law. 


§73. Easements.—Early History .—An easement is a right 
to use the land of another for definite and limited purposes, or 
to limit another in some definite way in the use of his land. 
Obviously it gives no possession or dominion over the land 


so burdened, and is therefore a 
The nature of easements and 

12 Van Rensselaer v. Radcliff, 10 
Wend. 639; Livingston v. Ketchum, 

1 Barb. 592. 

13 Tyrringham’s Case, 4 Coke 35; 
Wild’s Case, 8 Coke 156; Hall v. 
Lawrence, 2 R. I. 218. 

14 Tyrringham’s Case, 4 Coke 35; 
Kimpton v. Bellamyes, Leonard 43; 


mere right, purely incorporeal, 
the general rules of law appli- 

Rotherhan v. Green, Cro. Eliz., 593, 
(release of part of servient estate). 

For the same reason, when the 
owner of a portion only of the ser¬ 
vient estate purchases the dominant 
estate, the profit is extinguished. 
Livingston v. Ten Broeck, 16 Johns. 
(N. Y.) 14. 


INCORPOREAL INTERESTS 


289 


cable to them are expressed by Bracton for the most part in 
accord with the modern law. There seems to be no doubt 
that he drew heavily upon the Roman law for this part of his 
work, and that the actual adoption of many of the rules laid 
down by him as part of the law came at a much later time. He 
does not use the term “easements,” referring to them merely 
as “rights” with reference to the dominant estate, as “servi¬ 
tudes” from the standpoint of the estate which is burdened. 
This correctly defines the term “servitude” in its relation to 
“easement” in the modern law. 1 He recognizes the distinc¬ 
tion between easements appurtenant to a dominant estate and 
easements in gross; but he makes no clear statement as to the 
nature of such a right in gross. He asserts clearly enough, 
however, that a servitude must be created in favor of a domi¬ 
nant estate, not in favor of a person merely. 2 The two prin¬ 
cipal methods of creating easements, by grant and by prescrip¬ 
tion, are set forth by him in much the form of a modern 


§73. 1 “There are certain rights 

which belong to a tenement—be¬ 
sides the ownership of the corpo¬ 
real thing—these are from different 
points of view called rights or ser¬ 
vitudes. They are called rights or 
franchises in reference to the tene¬ 
ments to which they appertain. 
They are called servitudes in refer¬ 
ence to the tenements subject to the 
obligation; and they always consist 
in rights over another man’s land 
and not over a man’s own land, 
because no one can have a servitude 
over his own land, and no one can 
create a servitude of this kind but 
he who has lands and tenements." 
Bracton, f. 220. 

2 The servitude must be ascer¬ 
tained, because if the right be un¬ 
certain, for instance if at one time 


the owner grant a person more pas¬ 
ture, at another less, this would be 
rather a purchase of the feed than 
a right of common of pasture, and 
would be a right in gross rather 
than one appurtenant to the land. 
. . . Also, if the grant be merely 
to a person, it should be called a 
right of herbage, because the grantee 
has no free tenement to which it 
can appertain. But that only can 
properly be called a grant of a ser¬ 
vitude whereby one house or estate 
or farm or tenement is made sub¬ 
servient to another, and not only 
when ther$ is nothing but two per¬ 
sons and a single tenement; but 
both elements must coexist, there 
must be two tenements and a 
grantor and grantee." Bracton, f. 
220. 


20 


290 


HISTORY OF ENGLISH AND AMERICAN LAW 


text. 3 He refers to natural water rights as illustrations of 
servitudes imposed by law upon the servient estate, as that a 
man shall not raise the level of his pool so high as to drown 
the land of his neighbor, or divert water from his neighbor’s 
stream by a ditch. He defines in some detail the rights of an 
owner of a right of way to uninterrupted and convenient use 
thereof, and to keep it in repair free from interference by the 
owner of the servient estate. He states that “the kinds of 
rights which one person may have over the land of another 
are infinite in number.” 4 

Easements of way must have been very common for a long 
time prior to Bracton’s time in connection with rights of com¬ 
mon and also as incident to common-field agriculture in reach¬ 
ing strips of the common fields for the purpose of cultivation; 
and the other kinds of easements referred to by him were, no 
doubt, commonly recognized, though little or nothing with 
reference to them got into the records of the cases of his time. 
The term “easement” appears in Bracton’s Note Book, case 
720, and also in Year Book, 19 Edward III, 342. Many of 
the terms and probably much of the law of easements, especi¬ 
ally that relating to prescription, were borrowed by Bracton 
from the Roman law, and through him were eventually made 
part of the common law by the influence of his work upon 
lawyers and judges of later times.® 

Such development of the law of easements as took place 
during the fourteenth, fifteenth, and sixteenth centuries, and it 
was slight, is found in nuisance cases, the earlier action, assize 
of nuisance, or the later action on the case for nuisance. The 
exact limits of adjoining owners’ natural rights of light, air, 


3 “And in this way servitudes can 
be made to appertain to any land 
by voluntary grant or reservation 
on the part of the owners. They 
may also appertain to a tenement 
without a grant by long and peace¬ 
able user uninterrupted by any 


hindrance, interposed, and permit¬ 
ted to continue by parties who are 
on the spot, all which amounts to 
assent.” Bracton, f. 220. 

4 lb., f. 220. 

5 Holdsworth, Hist. Eng. Law, 
III, 128; Y.B. 19 Edward III, 342. 


INCORPOREAL INTERESTS 


291 


and water were gradually determined by actions of this kind 
in which alleged violations of these rights were involved; and 
alleged interferences with easements created by grant or pre¬ 
scription were made the subject-matter of similar actions. 
Easements in gross were recognized by Bracton, as we have 
seen above, though he tells us nothing of the extent or nature 
of the right, and a case in the Year Books cited by Mr. 
Holdsworth also recognizes the existence of such rights.® But 
the owner of an easement in gross had no remedy, as the assize 
of nuisance could be brought only by one freeholder against 
another. Mr. Holdsworth suggests that, after the assize be¬ 
came obsolete, it may be that the necessity of two estates as a 
basis of recovery in nuisance cases influenced the courts in 
holding at a later time that all easements must be attached to 
dominant estates—that easements in gross cannot exist except 
as mere personal rights incapable of transfer or of inheritance. 7 
By weight of authority, such would seem to be the modern 
rule in England, 8 though no reason exists why easements in 
gross should differ from profits in gross in respect to their 
assignability. 

In the United States, the prevailing rule, sound in principle 
and better supported by the early authorities than is the sup¬ 
posed modern English rule, is that easements in gross may be 
created, conveyed, devised, and inherited, like profits in gross, 


a Holdsworth, Hist. Eng. Law, 
III, 129; Y.B. 19 Edw. Ill, 342. 

7 Id., 130. 

8 Ackroyd v. Smith, 10 C. B. 164, 
180; Rangeley v. Midland R. Co., 
L. R. 3 Ch. 306, Lord Cairns say¬ 
ing (p. 312) : “There can be no 
such thing according to our law, 
or according to the civil law, as 
what I may term an easement in 
gross. An easement must be con¬ 
nected with a dominant tenement.” 
This statement was a dictum; and 


Ackroyd v. Smith decides only that 
a right in gross not incident to the 
enjoyment of a dominant estate, 
though granted with it, cannot run 
with the dominant estate to a 
grantee, heir, or devisee thereof, 
which is just as true of a profit of 
the same kind. See preceding sec¬ 
tion. That this question has not 
yet been finally settled in England, 
see Digby, Hist. Law Real Prop. 
(5th ed.), 182, note. 


292 


HISTORY OF ENGLISH AND AMERICAN LAW 


viz., where the effect will not be to enhance the burden upon 
the servient estate. Thus a right in gross to so much water 
from a spring as will flow through a pipe of stated size was 
held to be assignable. 9 Several other cases in New York, 
Michigan, and other states, make clear that this is the pre¬ 
vailing American rule. 10 Professor Washburn’s attempt to 
explain the supposed difference between easements and profits 
in gross by treating such profits as corporeal and therefore 
assignable, 11 fails completely, as there is no doubt that a profit 
is as incorporeal in all respects as an easement, no corporeal 
interest being acquired until the product or other profit be 
severed from the servient estate in the exercise of the incor¬ 
poreal right to enter and take it. The profit is the mere right 
to enter and take the product, mineral, or other part of the 
land. 12 Like a profit in gross, an easement in gross is a vested 
incorporeal interest in land, and there is no reason why it 
may not be created in fee, conveyed, devised, and inherited, 
like a profit in gross. 


§74. Creation of Easements and Profits .—Easements and 
profits may be created inter vivos by express grant or reserva- 


9 Goodrich v. Burbank, 12 Allen 
(Mass.) 459, referring to White v. 
Crawford, 10 Mass. 188, as holding 
that ways in gross “May be granted 
or may accrue in various forms to 
one, his heirs and assigns,” and 
Bowen v. Conner, 6 Cush. 137, de¬ 
claring this to be settled law in 
Massachusetts. The court quotes 
strong dicta in Lonsdale Co. v. 
Moies, 21 Law Rep. 664, sustaining 
the validity of easements in gross. 

10 Mayor of New York v. Law, 

125 N. Y. 380; Hall v. Ionia, 38 

Mich. 493; Pinkum v. Eau Clair, 
81 Wis. 301; Willoughby v. Law¬ 


rence, 116 Ill. 11; Shreve v. Mathis, 
63 N. J. Eq. 170. 

Cases to the contrary involve con¬ 
veyances increasing the burden by 
adding to the number of people who 
may use the way or other ease¬ 
ment. Boatman v. Lasley, 23 Oh. 
St. 614; Tinicum Fishing Co. v. 
Carter, 61 Pa. St. 21; Hoosie Stone 
Co. v. Malott, 130 Ind. 21, 24; 
Washburn, Easements (4th ed.), 13. 

11 Washburn, Easements (4th 
ed.), 19. 

12 Baker v. Hart, 123 N. Y. 470; 
Gloninger v. Franklin Coal Co., 55 
Pa. St. 9, 16; Carnahan v. Brown, 
60 Pa. St. 23. 


INCORPOREAL, INTERESTS 


293 


tion, by implied grant or implied reservation, and by prescrip¬ 
tion. We have seen that, under the early law, they could not 
be created by livery of seisin because they were incorporeal. 
There was nothing of which possession or seisin could be 
given. 1 “While, therefore, corporeal hereditaments were long 
transferable by mere delivery of possession without any writ¬ 
ten words, the proper mode of disposing of incorporeal hered¬ 
itaments alone, according to the common law, was by delivery 
of a sealed writing or deed of grant. Hence, corporeal hered¬ 
itaments were said to lie in livery (that is delivery), incor¬ 
poreal in grant.” 2 Easements and profits, therefore, like other 
incorporeal interests in land, have always required a writing 
under seal for their creation, before and after the Statute of 
Frauds. 

A surprising departure from technicality in favor of a broad 
principle based on justice and the public interest is the law' 
giving effect to easements arising by implication, as an im¬ 
plied term of a conveyance of land, though not expressly re¬ 
ferred to in the feoffment or other form of conveyance, nor 
even referred to orally by the parties. Thus, in 1606, the 
King’s Bench decided that, where a man installs pipes leading 
from a spring on one part of his land to a house on another 
part, and later sells the house, reserving the land, or sells the 
land reserving the house, the conduit and pipes pass with the 
house as necessary and “quasi appendant thereto; and he 
shall have liberty by law to dig in the land for amending the 
pipes, or making them new, as the case may require.” 8 In 
1607, the same court held that a vendee of land had a right 
of way by implication over land reserved by the vendor, there 
being no other way to the land conveyed to him “because it 
is a thing of necessity; for otherwise he could not have any 

§74. 1 See references to and quo- 2 Williams, Real Prop. (17th ed.), 
tations from Bracton in notes under 31. 

preceding section; also §41, ante. 3 Nicholas v. Chamberlain, Cro. 

Jac., 121. 


294 


HISTORY OF ENGLISH AND AMERICAN LAW 


profit of his land.” The court resolved that, in case the ven¬ 
dor reserves the inner parcel and sells the outer, he will have 
a similar way over the land conveyed by him, though not 
expressly reserved, “as reserved unto him by the law.” 4 In 
a case decided in 1656, a way of necessity was again recognized 
and enforced. It was held that the owner of the inner land 
could “take a convenient way without leave of the plaintiff 
and the law can then adjudge if it is convenient and suffi¬ 
cient.” 5 * An implied easement of light and air arising out of 
the sale of a house to one man, and the adjoining land to an¬ 
other, was enforced by the King’s Bench in 1663, on the 
ground that “the lights are a necessary and essential part of 
the house.” Tuysden said that, whether the land was sold 
before or after the sale of the house, the vendee of the land 
could not shut off the light from the house.* 

Ways of necessity arise by implied grant or implied reserva¬ 
tion in all cases where the owner of land conveys part of it, 
reserving the rest, and no other way exists from the inner 
parcel to the highway except over lands of strangers. The 
purchaser of the inner parcel gets a way of necessity to the 
highway over the land retained by the vendor, and the vendor 
gets a similar way if he sells the outer parcel retaining the 
inner one. In each case, the way arises by implied grant or 
reservation because of the necessity of the case. 7 

The cases above referred to are the earliest in which is laid 


4 Clark v. Cogge, Cro. Jac., 170. 

5 Parker v. Welsted, 2 Sid. 39, 
hi. 

8 Palmer v. Fletcher, 1 Lev. 122. 
The last five cases are reported in 
Gray, Cases Property, III, 345-348. 

7 Pomfret v. Ricroft, 1 Wms. 
Saunders, 323, “for without it (way 
of necessity) he cannot have any 
benefit from his grant”; Staple v. 
Heydon, 6 Mod. I; Chichester v. 
Lethbridge, Willes 72, note, the last 


two cases being cited in addition to 
Clark v. Cogge, supra, by Judge 
Martin in Pennington v. Galland, 
9 Ex. 1, for the rule that ways of 
necessity arise by implied reserva¬ 
tion as well as by implied grant in 
spite of the maxim that a man shall 
not derogate from his own grant. 
For details of the modern law of 
ways of necessity see Walsh, Real 
Prop., §280. 


INCORPOREAL INTERESTS 


295 


down the doctrine of easements arising by implication with¬ 
out any express provision for them either by deed or by parol 
between the parties. Ways of necessity are explained by strict 
necessity, necessary implication; there can be no doubt that 
the parties intended them. The other cases of easements by 
implied grant are not so easily explained. The rule laid down 
by the courts is that where the land conveyed by the grantor 
is, at the time of the conveyance, enjoying the benefit of a user 
of or burden upon the land retained which is open, notorious, 
continuous, and necessary to the enjoyment of the land con¬ 
veyed, it arises as an easement by an implied term of the deed. 
No clear analysis of the basic legal principle involved has been 
found in any case, early or recent. No doubt the rule is 
based on giving effect to the apparent intent of the parties. 
The extraordinary character of the rule lies in the fact that 
this intent is carried out by the creating of easements, inter¬ 
ests in land, which had no existence before, without any 
affirmative statement of such intent either by deed or even by 
mere speech. Nothing like it exists anywhere else in the law 
as distinguished from equity. Certainly the law has not sup¬ 
plemented deeds of conveyance of land in other cases by intro¬ 
ducing implied terms in order to give effect to unexpressed 
intent, even where omissions from deeds were obviously the 
result of mutual mistake. Equity has always had to give re¬ 
lief in such cases. 

These cases cannot be explained on the basis of necessary 
implication, because the implied easements, except in cases of 
ways of necessity, are rarely if at all strictly necessary to the 
beneficial enjoyment of the land conveyed. Thus an easement 
of conduit and water-pipe from a spring to a house may be 
replaced by sinking a well on the land conveyed with the 
house. A way not of strict necessity may be given up and 
another way laid out over the land purchased. A right of 
drainage over adjoining lands merely adds value to the domi¬ 
nant estate. The later and better considered cases in the 


296 HISTORY OF ENGLISH AND AMERICAN LAW 


United States have made very clear that the basis of the rule 
has always been, not that the easement is necessary to the 
beneficial enjoyment of the grantee’s land, but that it obviously 
adds to its value, so that in negotiating for the property, on 
observing the open and continuous character of the user of the 
adjoining land for the benefit of the land offered to him, the 
purchaser had the right to believe as a reasonable man that he 
was buying this right of user with the land and included com¬ 
pensation for it in the purchase price. 8 The easement is really 
implied to carry out the intent of the parties to be reasonably 
(not necessarily) inferred from the facts. 

The later English cases have applied the rule in a technical 
way without much regard for this fundamental principle of 
intent on which it depends; but the results arrived at have 
been generally sound in cases of easements by implied grant, 
construing the requirement that the user be “necessary” etc., 
as meaning “beneficial and valuable.” 9 But they have gone 
astray, as have some of the American cases, on similar ease¬ 
ments arising by implied reservation. On the principle that 
a deed must be construed most strongly against the grantor, 
and that he shall not be allowed to derogate from his own 


8 Toothe v. Bryce, 50 N. J. Eq. 
589, the court saying with reference 
to cases holding the user must be 
“necessary,” etc: “But I think that 
an examination of them will show 
that in most, if not all, of these 
instances . . . the so-called ‘neces¬ 
sity’ upon which the judges relied 
was, in fact, no necessity at all, but 
a mere beneficial and valuable con¬ 
venience.” The court then proceeds 
to examine the leading English and 
American cases, pointing out that 
the user in each case was in no 
proper sense “necessary.” In Cur¬ 
tis v. Ayrault, 47 N. Y. 73, refer¬ 
ring to an open artificial water¬ 


course, the court said: “The ques¬ 
tion is, did the purchaser, in arriv¬ 
ing at the price he would pay, con¬ 
sider, and have a right to consider, 
as an element of the value of the 
land he was bidding for, the bene¬ 
fits he derived from the artificial 
channel.” To same effect, making 
value the test, Paine v. Chandler, 
134 N. Y. 385; Spencer v. Kilmer, 
151 N. Y. 390. 

9 For the application of the law 
of easements by implied grant in 
English and American cases see 
Walsh, Real Prop., §282, and cases 
cited and discussed in notes there¬ 
under. 


INCORPOREAL INTERESTS 


297 


grant, they lay down the rule that the user must be strictly 
necessary to the beneficial enjoyment in order that such an 
easement shall be implied in favor of the grantor as against 
land conveyed to the grantee. 10 Though the American cases 
lay down in general terms the requirement of strict necessity 
of the user, an analysis of them establishes beyond doubt that 
the question turns on the intent of the parties. Where the 
situation is so clear that there can be no reasonable doubt 
that the parties intended the user to continue, the easement 
will be implied by reservation in favor of the grantor as it 
would be by implied grant in favor of the grantee were the 
parcels reversed; but, if a reasonable doubt exists, the rule of 
interpretation that deeds must be construed most strongly in 
favor of the grantee must be applied, and the easement will 
not arise in favor of the grantor by reservation; though the 
doubt would be resolved the other way, and the easement 
would arise by implied grant if the land benefitted was being 
conveyed. 11 

In England from early times, and in some cases in this coun¬ 
try, an easement of light and air arises by implied grant where 
a building with windows overlooking land retained by the 
grantor is conveyed to another. 12 

In most of the states, this English rule has been repudiated 
together with the law of ancient lights, for the same funda¬ 
mental reason, viz., that there is no apparent appropriation of 


10 Suffield v. Brown, 4 De Gex, 
J. & S., 185; Wheeldon v. Burrows, 
12 Ch. Div. 31; Union Lighterage 
v. London etc. Dock Co., L. R. 2 
Ch. 557 (1902), the court saying 
that the user must be so necessary 
that without it the land retained by 
the grantor cannot be used at all. 

11 See cases discussed in Walsh, 
Real Prop., 639, note 3, and §283 of 
same. 

12 Palmer v. Fletcher, 1 Lev. 122, 


note 6 supra; Wheeldon v. Bur¬ 
rows, L. R. 12 Ch. Div. 31; Allen 
v. Taylor, 16 Ch. Div. 355; Phillips 
v. Low, L. R. 1 Ch. 47, (will not 
arise by implied reservation in favor 
of grantor of vacant land in such 
case; statement in Palmer v. 
Fletcher, supra, is contra ) ; Greer 
v. Van Meter, 54 N. J. Eq. 270; 
Sutphen v. Therkelson, 34 N. J. Eq. 
318; Janes v. Jenkins, 34 Md. 1. 


298 HISTORY OF ENGLISH AND AMERICAN LAW 


the vacant land to the use of the building for light and air 
purposes, and therefore the purchaser of the building has no 
right reasonably to assume that he is buying a right to re¬ 
strict building on the land retained. 13 


$75. Easements and Prodts by Prescription .—Bracton 
speaks of the exercise of a peaceful user over another’s land 
for any considerable time as giving a kind of possessory right, 
so that the person so enjoying the right could not be ousted of 
it without the judgment of a court. 1 This idea of a possessory 
incorporeal right which was not really a right, was unworkable 
and soon disappeared. 2 Long continued user, peaceable and 
uninterrupted, open and not clandestine, in the presence of the 
owners of the servient estate, the user extending beyond the 
time of the memory of men, from time immemorial, from the 
time of the Norman Conquest, is the substance of the creation 
of easements or profits by prescription in Bracton’s time. 8 

Seisin of a rent service or other incident of feudal tenure, 
being “of common right,” was sufficient to establish a posses¬ 
sory or prima facie right in the claimant which the law would 
protect against wrongful intermeddlers, but a prescriptive user 
beyond legal memory had to be shown to establish an easement 
or profit in another’s land which was not “of common right.” 
Therefore the fundamental principle on which prescription 
depended was immemorial user of the land burdened in a way 
not explained or justified by tenure, and recognized only be¬ 
cause it had always been exercised and enjoyed. The man 


13 Keats v. Hugo, 115 Mass. 204; 
Mullen v. Strieker, 19 Oh. St. 135; 
Kennedy v. Burnap, 120 Cal. 488; 
Myers v. Gemmel, 10 Barb. (N. Y.) 
537; Haverstick v. Supe, 33 Pa. St. 
368 . 

§75. 1 Bracton, f. 220. 

2 Poll. & Mait., Hist. Eng. Law, 

II, 141. 


3 Bracton, ff. 220, 230; Bracton’s 
Note Book, pi. 223, 274, 392, 628, 
971, 1624, seisin of the right of com¬ 
mon alleged as having existed from 
time immemorial—since the Nor¬ 
man Conquest. Poll. & Mait., Hist. 
Eng. Law, II, 140, 141. 


INCORPOREAL INTERESTS 


299 


enjoying the user from time immemorial had an absolute title, 
because there was no evidence of a time when he or his pred¬ 
ecessors did not have it, and therefore there was no evidence 
that the user had ever been wrongful. 4 That the user had to 
be adverse to the owner of the land subjected thereto is estab¬ 
lished not only by the fact that it had to be “against common 
right” but also because, as Bracton states, it must be without 
the actual permission or license of such owner. 5 There can 
be no real doubt, therefore, that prescription was based from 
the beginning on the same broad principle on which statutes 
limiting actions for the recovery of land were based, viz., the 
settling of conflicting claims in favor of long-continued adverse 
possession, of land by the statutes of limitation of real actions, 
of incorporeal rights by long continued adverse user and en¬ 
joyment of such rights against the common right of the owner 
of the land so used. 

By the Statute of Westminster (1275), 3 Edward I, ch. 39, 
the time for bringing a writ of right was limited to the time of 
Richard I, or eighty-eight years. This limitation continued 
unchanged, the period of limitation becoming so extensive as 
time passed that it ceased to be a real limitation, until the 
Statute 31 Henry VIII, ch. 2 (1534) fixed the period within 
which an action to recover land had to be brought at sixty 
years. These statutes related to actions to recover land, not 
to incorporeal rights arising by long user; but, in the absence 
of statute relating to incorporeal prescriptive rights, the courts 
decided that user beyond legal memory was established by es¬ 
tablishing a user going back to the time fixed by the statutes 
of limitation of actions to recover land. Therefore, prior to 
1534, legal memory was held to go back to the time of Richard 
I. As time went on, it obviously became impossible to estab- 

4 Holdsworth, Hist. Eng. Law, mere act of grace and favor which 
III, 135-137; Bracton, f. 230; Y.B. may be revoked in season and out 
20 Edward III, 342. of season, no right is acquired by 

8 “Moreover if it was due to a lapse of time.” Bracton, f. 220. 


3oo 


HISTORY OF ENGLISH AND AMERICAN LAW 


lish a user by legal evidence back to this early time. The 
courts met this situation by establishing the rule that, if the 
proof of user was carried back as far as living memory could 
go, it would be presumed that it existed from legal memory, 
viz., from the time of Richard I. Therefore proof of user 
during living memory established the prescriptive right, and 
the courts did not find it necessary to change the time of legal 
memory to sixty years back when the Statute 31 Henry VIII 
was enacted. The Statute 21 James I, ch. 16, (1623), finally 
fixed the period of limitations of actions to recover land at 
twenty years, where it has remained ever since. No corre¬ 
sponding statute covering prescriptive user having been en¬ 
acted, the courts again modified their rule by analogy to this 
statute of limitation, holding that user for twenty years was 
sufficient to give rise to the presumption that the user extended 
back to the time of legal memory. As this was a presumption 
only, it was frequently defeated by proof that the user had 
originated after the time of Richard I though more than 
twenty years back. To avoid this, the courts created the device 
of presuming a lost grant, where the proof of adverse user was 
■carried back for twenty years, directing the juries to find that 
the easement or profit had been created by a valid grant which 
had been lost, and thus effectually destroying the effect of 
proof of the beginning of the user within the time of legal 
memory. This presumption was a mere fiction, no one be¬ 
lieving in such cases that a grant had ever been made. 8 For a 
time, opinion fluctuated as to whether this presumption could 
be rebutted by proof that no grant had been made; but the 
weight of authority sustains the view that the presumption was 
a mere fiction, it being understood that no grant had been 
■made, and therefore it could not be rebutted by such evidence. 7 
This was finally settled as the law by the Prescription Act, 2 

6 See outline of development of 7 Angus v. Dalton, 4 Q.B.D. 162* 
prescription by Coburn, Ch. J., in Eldridge v. Kinott, Cooper, 214. 
Angus v. Dalton, 3 Q.B.D. 85. 


INCORPOREAL INTERESTS 


301 


and 3 William IV, ch. 71. It is now settled law, in the United 
States as well as in England, that twenty years adverse user 
(or such other period as may be fixed by the Statute of Limi¬ 
tations in the particular state for actions to recover land) will 
give rise to an easement or profit by analogy to the Statute of 
Limitations relating to actions for the recovery of land, with¬ 
out regard to the fiction of a lost grant which has been dropped 
as no longer needed. 8 

Coke says that the user must be long, continuous, and peace¬ 
able : long, that is, during the time defined by law; continuous, 
that is, that it may not have been lawfully interrupted; peace¬ 
able, because if it be contentious, and the opposition be on 
good grounds, the party will be in the same position as at the 
beginning of his enjoyment. 9 By a long line of cases, the 
word “interrupted” in this connection has acquired the definite 
meaning of an obstruction to the use of the easement, an act 
of interference which, if the easement were valid, would give 
the dominant owner an action for damages. 10 The word 
“peaceable” as used by Coke adds nothing, by weight of au¬ 
thority, to the word “interrupted.” Mere protests and con¬ 
tentiousness not taking the form of interruptions giving the 
dominant owner a right to sue and thereby establish his right, 
will not stop the running of the period of adverse user. 11 Of 
course, the starting of an action for an injunction or to recover 
damages because of the user is an interruption. 12 

That the user must be adverse has always been the very basis 
of a prescriptive right. It has always been the law, from 


8 Leheigh Valley R. R. Co. v. Mc- 
Farlan, 43 N.J.L. 605, and cases 
and authorities cited; Tracy v. 
Atherton, 36 Vt. 503; Coolidge v. 
Learned, 8 Pick. (Mass.) 504; 
Kent, Comm., Ill, 445 ; Grennl., Ev., 
I, §17; Washb., R. P., II, 449- 

9 Co. Litt., 113b. 

10 Olney v. Gardner, 4 M. & W. 


495, Park B.; Leheigh Valley R. R. 
Co. v. McFarlan, 43 N. J. L. 605. 

11 Leheigh Valley R. R. Co. v. 
McFarlan, supra. See discussion 
of English cases on this point by 
Depue, J. 

12 Eaton v. Swansea Water Wks. 
Co., 17 Q.B. 267; Walsh, Real 
Prop., 648. 


302 


HISTORY OF ENGLISH AND AMERICAN LAW 


Bracton to the present time, that user under a license or per¬ 
mission of the owner will not create a prescriptive right. 1 * 
It is the failure of the servient owner to act so as to interrupt 
the user for twenty years which gives rise to the easement by 
analogy to the Statute of Limitations relating to actions to 
recover land. He is barred of his right to oust the wrong¬ 
doer from the user just as the owner of land is barred from 
his right to eject the adverse possessor by the Statute of Lim¬ 
itations. For this reason, the English doctrine of ancient 
lights by prescription and the similar doctrine of prescriptive 
easements of lateral support of buildings erected on adjoining 
property have been repudiated in the United States, there 
being no wrongful or actionable user of the adjoining land 
by the owner of the building getting the benefits of such light 
or lateral support. 14 

Details of the rules of law relating to the different kinds 
of easements lie outside the scope of this work. The purpose 
has been to trace the important steps by which the law relating 
to easements and profits, their origin and nature, has de¬ 
veloped. 15 


18 See Bracton, note 5 supra; 
Carmody v. Mulrooney, 87 Wis. 
552; St. Vincent’s Asylum v. Troy, 
76 N. Y. 108, and other cases cited 
Walsh, Real Prop., 651. 

14 Parker v. Foote, 19 Wend 
(N. Y.) 309; Hayden v. Dutcher, 
31 N. J. Eq. 217; Keats v. Hugo, 
115 Mass. 204. 

The English law of ancient lights 
is now expressed in the Prescrip¬ 
tion Act above referred to. An 
easement of lateral support of a 
building arises as against the ad¬ 
joining land by twenty years’ sup¬ 
port of the building, though not en¬ 
croaching in any way on said land 
or violating any right of the ad¬ 


joining owner, is established law in 
England. Dalton v. Angus, 6 App. 
Cas. 740, 791. There are some dicta 
and a few early cases in the United 
States supporting this view. Lasala 
v. Holbrook, 4 Paige Ch. 169, 
(dicta) ; Aston v. Nolan, 63 Cal. 
269; City of Quincy v. Jones, 76 
111 . 231. The later cases, sound on 
principle, settle the law as stated in 
the text. Gilmore v. Driscoll, 122 
Mass. 199; Handhan v. McManus, 
100 Mo. 124; Tunstall v. Christian, 
80 Va. 1; Sullivan v. Zeiner, 98 Cal. 
346; Shultz v. Byers, 53 N.J.L. 442. 

1B For details of the law of ease¬ 
ments see Walsh, Real Prop., 655- 
696. 


INCORPOREAL INTERESTS 


303 


§76. Covenants Running with the Land .—Burdens on land 
created by covenants enforceable not only against the cove¬ 
nantor but also against all persons succeeding to his interest, 
modify his ownership very much as easements and profits 
modify the servient estate. When the covenants bind the 
grantor in favor of the grantee, his heirs, and assigns, so as 
to be enforceable by him or by any person succeeding to his 
interest, the grantee takes as appurtenant to his land an in¬ 
corporeal right resembling an easement enjoyed by the owner 
of a dominant estate. The close relation of these covenants to 
easements and servitudes is therefore sufficiently clear. 

The covenant of warranty gave rise to the earliest cases of 
covenants running with the land. The doctrine of warranty 
goes back to the early Teuton and Saxon law, as we shall see, 
in its relation to transfers of personal property . 1 The same 
doctrine applied to conveyances of land as between the feoffor 
or lord and the feoffee, whether the feoffment was by way of 
subinfeudation or in the creation of an original feud. This 
implied warranty arising by law could not attach to convey¬ 
ances after the Statute Quia Emptores, and continued only as 
an incident of tenures existing prior to the enactment of that 
statute. It gave to a tenant who had been ousted (at any 
rate, when the feud was granted him for services, and was not 
merely gratuitous) the right to recover from his lord or his 
heirs a feud of equal value, or, in default thereof, compensa¬ 
tion for his loss; it also barred the heirs of the lord or grantor 
from questioning the tenant’s title . 2 After the Statute Quia 
Emptores, express covenants of warranty were required be¬ 
tween feoffor and feoffee, as no tenure existed between them 
because of the statute, and therefore the old warranty could not 
be implied. If the express warranty ran to the feoffee, his 
heirs, and assigns, it could be enforced against the feoffor or 
his heirs by any heir or assignee of the feoffee ousted because 

§76. 1 See §77, post. Littleton, 1st Am. ed., under §697. 

2 See Butler’s note to Coke on 


304 


HISTORY OF ENGLISH AND AMERICAN LAW 


of the feoffor’s failure of title. Whatever doubt of this there 
may have been in Edward I’s reign , 3 disappeared shortly after . 4 
The word “assigns” was necessary if the covenant was to 
operate as the ancient warranty above described, giving a right 
to land of equal value, but not if it was to operate merely as 
a covenant giving the right to damages only . 5 Since the cove¬ 
nant created a right passing with the land as appurtenant to it 
like an easement, the word “assigns” was not required in 
order that the right might pass on conveyance of the land, 
the word “heirs” in the covenant being enough to establish its 
character as an incident of the estate conveyed . 8 There can be 
no doubt, of course, that these covenants were enforceable by 
subsequent owners of the land, strangers to the original cove¬ 
nant, because the parties to the covenant intended that result, 
which was quite in accord with the ancient doctrine of feudal 
warranty. These covenants protected and tended to secure the 
title in all subsequent owners tracing their title to the original 
covenantee; and public policy as well as the well known prin¬ 
ciples of ancient implied warranty required that they should 
run with the land. 

It is quite a different question, however, whether other like 
covenants made by the grantor to the advantage of the land 
conveyed, as to make repairs, to build improvements, not to 
engage in a stated business in the neighborhood of the land 
conveyed, and the like, will attach as incorporeal appurtenances 
of such land so as to be enforceable by subsequent owners, 
strangers to the covenant and the consideration, where no re¬ 
version is reserved by the grantor and the burden is necessarily 
personal to him, in no way an incident of tenure. The earli¬ 
est case cited for this proposition is Packenham’s Case 

3 Y.B. 20, 21 Edward I, 232, 234. 5 Y.B. 50 Edward III, Trin., pi. 2; 

4 Y.B. 13, 14 Edward III, 24; 18 Co. Litt., 384b, 385a. 

Edward III, 440, 442; 14 Henry IV, « Holdsworth, Hist. Eng. Law , 

Mich., pi. 6; Co. Litt., 384b; Holds- III, 132. 

worth, Hist. Eng. Law, III, 131; 

Holmes, Com. Law, 374. 


INCORPOREAL INTERESTS 


305 


( I 3 67). 7 Packenham’s great-grandfather had secured a cove¬ 
nant from a prior that he and the convent would sing every 
week in the chapel of the manor; Packenham sued the prior 
for breach, claiming as assignee of the manor, not as heir; 
and the court decided he could recover, the obligation arising 
out of the covenant passing with the manor as appurtenant 
thereto. In a case decided in 1582, a covenant by a feoffor 
in fee that, if the feoffee, his heirs, or assigns, should be dis¬ 
trained to do more services than were reserved in the deed, 
he or they might distrain for a like amount in the feoffor’s 
manor of D, was held enforceable by another to whom the 
feoffee conveyed the land. 8 9 In these cases, the benefit of the 
covenant undoubtedly ran with the land conveyed, though no 
reversion, easement, rent charge, or other interest in the land 
was reserved by the covenantor to which the covenant could 
attach as an incident. The modern cases apparently bear out 
these holdings, 0 the basis of the rule being most clearly ex¬ 
pressed in a case in New Jersey in which the defendant, on 
conveying a building intended to be used as a bank, covenanted 
that he would not engage in the banking business in that town, 
the covenant being expressly made enforceable by any heir or 
assignee of the grantee to whom the building might pass. 
In holding that the covenant ran with the land as a benefit, 
though a similar covenant could not be attached as a burden, 
the court said: “There is such an essential difference, in social 
effect, between permitting a ‘burden’ to be annexed to the 
transfer of land and the giving to a benefit such a quality, 
that the subject will unavoidably run into obscurity, unless 
the distinction is kept constantly in view. The conspicuous 
impolicy of allowing land to be tramelled in its transfer, 


7 Y.B. 42 Edward III, 3, pi. 
Gray, Cases on Property, II, 357. 

8 Anonymous, Moore, 179, pi. 318; 
Gray, Cases on Property, II, 359. 

9 See Smith, Leading Cas. (10th 


ed.), I, 72 et seq.. Sims, Cov., 195 
et seq.; Shaber v. St. Paul Water 
Power Co., 30 Minn. 179, 183; Na¬ 
tional Bank at Dover v. Segur, 39 
N.J.L. 173. 


21 


3 o6 HISTORY OF ENGLISH AND AMERICAN LAW 


to the extent that previous owners may choose to affect it by 
their contracts, was pointed out and condemned in the case 
of Brewer v. Marshall, 3 C. E. Green 337; 4 id., 537. In 
that case, the owner of real estate sold a portion of it, and 
covenanted with the purchaser that neither he nor his assigns 
should sell any marl from off the residue of the tract. The 
suit was against the alienee of the vendor, and the decision 
was that such a burden would not follow the land into the 
hands of such alienee of the covenantor. The reason assigned 
for this conclusion was the public inconvenience that would 
result if incidents could be annexed to land “as multiform 
and as innumerable as human caprice.” But when we turn 
our attention to the consideration of those covenants, which, 
instead of being burdensome to the land, are benficial to it, 
we perceive at once that such objection does not apply. Such 
covenants do not hinder, but rather facilitate the transmission 
of land from hand to hand; and, therefore, with respect to 
their transmissibility, the question of public convenience has 
no place. This being the case, it is not easy to see why any 
contract which is of a nature to attach to the land and which 
has a beneficial tendency, should not be considered assignable, 
by act of law, as against the covenantor, with the title.” 10 

The position of the law seems to be that covenants relating 
to land and expressly made for the benefit of the land con¬ 
veyed and expressly enforceable by any succeeding owner, 
will run with the land as against the grantor, though not 
incident to any tenure, easement, rent-charge or other relation 
or privity between the parties with reference to the land. The 
law is merely giving effect to the intention of the parties, 
as with covenants of title; and, as no violation of public 
policy is involved, there is no reason why that intent should 
not be carried out. 

10 National Bank at Dover v. 

Segur, supra. 


INCORPOREAL INTERESTS 


307 


The reason why a covenant placing a burden on the land 
does not run with it in like cases where no tenure, easement, 
or other privity exists, is that such burdens tend to make the 
land inalienable and are therefore contrary to public policy. 
This has been finally settled by comparatively modern cases. 11 

Covenants determining the terms of the tenure between 
landlord and tenant, reversioner and life tenant, covenants 
fixing the terms or incidents of easements between the suc¬ 
cessive owners of the dominant and servient estates, cove¬ 
nants relating to rent charges, and covenants between joint 
tenants and tenants in common relating to the incidents of 
the enjoyment of the land so owned, all run with the land 
either as benefits or burdens because they are part and parcel 
of the relation existing between the original parties and their 
successive owners; and, as long as the estates or interests 
involved continue, such covenants necessarily continue as 
benefits or burdens, as the case may be, attaching to such 
estates or interests. The law governing this kind of cove¬ 
nant running with the land was first stated in clear form in 
Spencer’s Case. 12 In landlord and tenant cases and others 
involving tenure, covenants touching or affecting the land in 
the sense that they expressed or defined the terms under 
which the tenant held the land, including rent, repairs, im¬ 
provements, restrictions on use, and the like, ran with the 
land when the term was assigned, but not with the reversion 
when the landlord conveyed his interest. 13 The notion seems 
to have been that there was no corporeal thing in the rever¬ 
sioner to which the covenant could attach. This was purely 


11 Austerberry v. Oldham, 29 Ch. 
Div. 750; Brewster v. Kitchell, 
(1698), 1 Salk. 197; Smith, Lead¬ 
ing Cos., I, 75 - 85 ; Brewer v. Mar¬ 
shall, 3 C. E. Green (N. J.) 337, 
4 id., 537, referred to in National 
Bank at Dover v. Segur, quoted 
from in text above; Hurd v. Cur¬ 


tis, 19 Pick. (Mass.) 459. See also 
Norcross v. James, 140 Mass. 188, 
Holmes, J. 

12 5 Coke 16a, (1583). 

13 Thusby v. Plant, 1 Wm. Saun¬ 
ders 300, n. 10; Smith, Leading Cos. 
(10th ed.), 1, 58. 


308 HISTORY OF ENGLISH AND AMERICAN LAW 


notional and entirely unreasonable, and the law was changed 
by the Statute 32 Henry VIII, ch. 34, which provided that 
all such covenants would run with the reversion so as to be 
enforceable by or against heirs and assigns of the landlord 
as well as successors in interest of the tenant. 

One of the rules laid down in Spencer’s Case was that a 
covenant relating to a thing not in esse at the time, as to 
erect a wall on the leased property or to make other improve¬ 
ments thereon, would run with the land only when assigns 
were expressly named, the improvement not being in exist¬ 
ence as part of the land at the time. That this distinction is 
purely technical and is without merit is clear, since such a cove¬ 
nant is one of the terms, part of the consideration, on which 
the tenant holds the property, and should bind an assignee 
like any other term of the tenure. The later cases have 
sharply questioned or repudiated this rule. 14 

The true nature of this second class of covenants as mere 
incidents of tenure between landlord and tenant or between 
reversioner and life tenant, appears with equal clearness in 
covenants between dominant and servient owners affecting 
or modifying easements. They are in the nature of grants 
or reservations fixing the terms of the easement between the 
parties and therefore necessarily binding all subsequent owners 
of both estates during the life of the easement. It is true 
that they run with the land as covenants because they are at 
all times enforceable as such; but they are so enforceable, not 
because the original parties intended that subsequent owners 
should be bound by them or have the right to enforce them, 
but because they become actual terms of the easement affect¬ 
ing the dominant and the servient estates. This is why the 
burden runs with the servient estate just as the benefit runs 

14 Minshall v. Oakes, 2 H. & N. 40 Iowa 311, and other cases cited, 
793; Smith’s Leading Cas. (10th Walsh, Real Prop., 702, 703, where 
ed.), 66-69; Peter v. Stone, 193 modern cases supporting this dis- 
Mass. 179; Frederick v. Callahan, tinction are also cited. 


INCORPOREAL INTERESTS 


309 


with the dominant estate. 15 It has been held that a covenant 
between owners of mills on a river regulating the use by the 
contracting parties of their water power was merely personal 
and did not bind subsequent owners of the mills affected, 
because privity of estate did not exist between them, as one 
did not acquire his interest from any of the others, the relation 
of grantor and grantee not existing between them, the ease¬ 
ments existing by natural right. 16 In a case decided by the 
same court at the same time, it was held that covenants made 
affecting a similar easement arising as a result of a convey¬ 
ance of land abutting a mill pond by one party to the other 
ran with the land as terms of the easement. 17 It is, of course, 
quite immaterial on principle how the easement originated. 
Whether it exists by natural right or arises by grant, there is 
no reason why the parties cannot regulate its enjoyment by 
mutual covenants. Privity between the parties arises out of 
their mutual interest in the easement or right; and any per¬ 
manent modification thereof ought to be binding on subse¬ 
quent owners of the different estates affected. Privity is not 
necessarily limited to cases of grantor and grantee; and the 
best considered cases and the weight of authority are opposed 
to the position taken in Hurd v. Curtis. 18 

Covenants between joint tenants or tenants in common 
made with the intent permanently to regulate or modify the 
enjoyment of the land, turn on exactly the same principles 
as do covenants affecting easements, and bind succeeding 


15 Morse v. Aldrich, 19 Pick. 
(Mass.) 449; Fitch v. Johnson, 104 
Ill. 111; Gilmer v. Mobile & M. R. 
Co., 79 Ala. 569, and cases cited 
therein. 

19 Hurd v. Curtis, 19 Pick. 
(Mass.) 459, followed in Lawrence 
v. Whitney, 115 N. Y. 410, 415. 

17 Morse v. Aldrich, 19 Pick. 449, 
supra. 


18 Horn v. Miller, 136 Pa. St. 
640; Fitch v. Johnson, 104 Ill. hi; 
Batavia Mfg. Co. v. Newton Water 
Co., 91 Ill. 230; Nye v. Hoyle, 120 
N. Y. 165; Denman v. Prince, 40 
Barb. (N. Y.) 213; Weil v. Bald¬ 
win, 64 Cal. 476. 


3 io 


HISTORY OF ENGLISH AND AMERICAN LAW 


owners for the same reason. 19 Covenants creating or relating 
to rent-charges run with the rent-charge as against the land 
because of the privity between the parties arising out of the 
rent-charge, so as to bind any succeeding owner of the land 
in favor of any subsequent owner of the rent. 20 

Therefore covenants running with the land at law divide 
themselves into two classes: 

ist, Covenants attaching to land conveyed in fee as benefits, 
including covenants of title, and other covenants, seldom 
arising in practice, the benefits of which are intended to 
attach to the land in favor of subsequent owners. In these 
cases, the right to enforce the covenant is a purely con¬ 
tractual right which is enforceable for the benefit of the land 
by any subsequent owner against the covenantor personally 
because the parties so intended. Judge Holmes draws a dis¬ 
tinction between covenants of title, enforceable by the heir 
of the grantee because he was anciently regarded for the 
purpose as identified with the ancestor, and by the assignee 
because he was originally regarded, for instance by Bracton, 21 
as one appointed as heir, and other covenants creating benefits 
attaching to the land by analogy to easements. 22 But this 
primitive notion of Bracton soon disappeared. Certainly there 
is no basis today for asserting that the heir or assignee en¬ 
forces a covenant of title as one identified with the original 
covenantee. In both classes of cases, the covenant as a benefit 
is enforceable by heirs and assigns because the original parties 
so' intended. It is simply another illustration of the power 
of the owner to enforce his will by the “form of the gift.” 

2 nd, All other covenants running with the land at law are 

19 Thompson v. Hakewill, 19 C. B. 166; Miles v. Branch, 5 M. & S. 

(U. S.) 713; Coleman v. Coleman, 411; Gray, Cases, II, 584, 411; Van 
19 Pa. 100; Denman v. Prince, 40 Rensselaer v. Read, 26 N. Y. 558. 
Barb. (N. Y.) 213; Taylor v. Bald- 21 Bracton, f. 17b, 67a, 380b, 381. 
win, 10 Barb. (N. Y.) 58. 22 See opinion by Holmes, J. f 

20 Brewster v. Kidgill, 12 Mod. Norcross v. James, 140 Mass. 188. 


INCORPOREAL INTERESTS 


3ii 


incidents of tenure, incidents of easements between the owners 
of the dominant and servient estates, incidents of cotenancies 
between coowners, or incidents of rent charges. The term 
“running with the land” in these cases is entirely unnecessary 
and sometimes misleading. They are merely terms of the 
permanent relationship continuing in the successive owners 
of the interests involved. They include in practice nearly all 
the covenants running with the land at law. 

In all these cases, the covenants must relate to the land 
so as directly to affect the interest or estate involved. An 
English case holding that a covenant by the landlord not to 
engage in business of the kind to be carried on by the tenant 
within a stated distance from the leased premises was purely 
persona] in that it did not touch or concern the land directly, 
is not sound in principle. 23 It is obvious that such a covenant, 
when made solely for the benefit of the land so leased, in aid 
of the business which the tenant intends to engage in on the 
leased premises, is part of the consideration, and cannot be 
enforced at all after an assignment unless enforceable by the 
assignee of the term. 24 

Covenants affecting the land but not running with the land 
at law within the rules outlined above, will still run with the 
land in equity binding any subsequent grantee, provided the 
covenant be enforceable against the original covenantor by 
specific performance and provided the assignee take with 
notice. The modern practice of introducing all kinds of 
restrictions in deeds, and the modern law requiring the 
recording of conveyances by which constructive notice of such 
restrictive covenants is given to all subsequent purchasers, 
have resulted in greatly extending the power of the owner 
to restrict the use of land conveyed by him. All of this is 
part of the law of specific performance, a comparatively 

28 Thomas v. Hayward, L. R. 4 24 See also, National Bank at 

Ex. 311. Contra, Norman v. Wells, Dover v. Segur, 39 N.J.L. 173- 
17 Wend (N. Y.) 136. 


312 


HISTORY OF ENGLISH AND AMERICAN LAW 


modern development of equity jurisdiction, the grantee taking 
with notice of the equity arising from the covenant . 28 


25 In Whitney v. Union R. Co., n 
Gray (Mass.) 359, 363, the court 
explains the principle involved in 
these cases as follows: “Upon this 
point the better opinion would seem 
to be that such agreements are valid, 
and capable of being enforced in 
equity against all those who take 
the estate with notice of them, 
although they may not be strictly 
speaking real covenants, so as to 
run with the land, or of a nature 
to create a technical qualification of 
the title conveyed by the deed. The 
doctrine rests on the principle that, 
as in equity, that which is agreed 
to be done shall be considered as 
performed, a purchaser of land. 


with notice of a right or interest 
in it, subsisting in another, is liable 
to the same extent and in the same 
manner as the person from whom 
he made the purchase, and is bound 
to do that which his vendor had 
agreed to perform. ... It is not 
binding on him merely because he 
stands as an assignee of the party 
who made the agreement, but be¬ 
cause he has taken the estate with 
notice of a valid agreement con¬ 
cerning it, which he cannot equi¬ 
tably refuse to perform.” See 
Walsh, Real Prop., §304, for treat¬ 
ment of details of the law applying 
to this class of covenants. 


CHAPTER XIV 


DEVELOPMENT OF THE LAW. OF PERSONAL 
PROPERTY 

§77. Ownership and Possession.—The Appeal of Lar¬ 
ceny .—There can be no doubt that the principle of individual 
ownership of property started with chattels rather than with 
land among the Germanic forefathers of English law. The 
pastoral, nomadic tribes described by Caesar as occupying 
land for a year and moving on each year to fresh pastures 
and hunting grounds 1 certainly did not recognize private 
ownership of land; but individual ownership of weapons, im¬ 
plements, articles of clothing, and domestic animals must have 
been a different matter. 

We know very little about the law of chattels during the 
Saxon and early Norman period. It was part of the cus¬ 
tomary law administered in the local courts of whose pro¬ 
ceedings we have no records. We can best get at the early 
conception of what we now call ownership and of the relation 
of possession to ownership of chattels by considering, as in 
the case of land, the development of the remedies which the 
law gave to the owner against wrongful takers. 

The one remedy of this kind existing during Saxon times, 
of which we have knowledge not based on mere conjecture, 
is the proceeding against a thief for stealing cattle, hereto¬ 
fore described. 2 Though this action was primarily penal, the 
owner nevertheless recovered his property. This remedy was 
continued in the early Norman period, assuming the form of 
action known as the appeal of larceny in the thirteenth century. 
The owner of the stolen cattle was bound to raise the hue 
and cry, and follow the trail with his neighbors; and, if the 


§77. 1 See §2, ante. 


3 See §8, ante. 


314 


HISTORY OF ENGLISH AND AMERICAN LAW 


thief was captured with the stolen cattle in his possession, 
he was taken at once before a local court and sentenced to 
death without being permitted to deny his guilt, the duty of 
beheading him being sometimes assigned to the sakeber, as 
the prosecutor in these cases was called. 8 Where the trail 
could not be followed and an appeal was necessary, the owner 
proclaimed his loss in the four nearest townships, or reported 
the crime to the coroners, making his appeal at the next 
county court against the wrongful taker. The appellee could 
accept the appellor’s offer of battle or defend by proving that 
the goods were always his, or by vouching a warrantor, a 
third person from whom he claimed to have purchased the 
goods, and who was thus called on to defend the action. This 
warrantor could vouch another warrantor in the same way, 
and this might be repeated a third time, possibly a fourth, 
but not oftener. 4 The appellee could also establish that he 
purchased the chattel in open market before witnesses. In 
each case, the appellee was acquitted of the theft if he estab¬ 
lished his defense, but, whether he was acquitted or convicted, 
the appellor recovered his goods except where the appellee 
prevailed in his defense that they were his from the first. 6 
This proceeding could be brought against anyone in wrongful 
possession of the complainant’s property, though not a thief, 
by omitting words of felony from his pleading, claiming the 
goods as having in some way gone from him against his will, 
his res adiratae , as Bracton called such goods.® The gist of 
this action was wrongful detention after demand. 7 


8 Bracton, ff. 150b, 154b; Fleta, i. 
54 J Britton, I, 56; Poll. & Mait., 
Hist. Eng. Law, II, 159. 

4 GIanv., lib. X, cap. 15, 16; 

Bracton, f. 151; Poll. & Mait., Hist. 
Eng. Law, II, 162. 

°Glanv., lib. X, cap. 17; Brac¬ 
ton, f. 151. 

•Bracton, f. 150b, 140b; Fleta, f. 


55; Britton, I, 57. Whether “adira- 
tum” means “lost by accident,” or 
“lost whether by accident, wrongful 
taking or otherwise” is said by Pol¬ 
lock & Maitland (Hist. Eng. Law, 
II, 160, n. 2) to be a moot point. 

7 Bracton’s Note Book, case 824. 
See case in Novae Narrationes, ff. 
65b, 66, quoted in Holdsworth, III, 


THE LAW OF PERSONAL PROPERTY 


315 


This action in either form could be brought by a possessor, 
though his possession was wrongful. The possession of chat¬ 
tels, like the possession of land, was therefore protected. 8 
Nevertheless the real owner could maintain the appeal, not 
only against the thief but against anyone taking from the 
thief, no matter how many hands the chattel had passed 
through; or, by the action for his res adiratae, he could re¬ 
cover his chattel or its value from any possessor provided it 
had originally been taken away from him against his will. 
A bailee, viz., one in possession of a chattel with the owner’s 
consent, including loans, pledges, hirings, delivery for car¬ 
riage, safe keeping, etc., could alone maintain the appeal in 
either form against the wrongdoer or other person taking 
from the wrongdoer. The bailor’s only remedy was detinue 
against the bailee, which will be discussed hereafter. 9 

Such was the general situation up to about 1250 when the 
new action of trespass de bonis asportatis commenced to super¬ 
sede the appeal as the owner’s remedy against a wrongful 
taker of his chattels, the appeal becoming a strictly penal 
action, as we shall see in the next section. Up to this time, 
this early law of the popular local courts gave a very real 
and fairly effective remedy to the owner to recover his chat¬ 
tels or their value in case of takings against his will. The 
weak spot was in the owner’s lack of remedy against a wrong¬ 
ful taker of his goods from a bailee. Bailments aside, the 
owner could follow and recover his goods or their value, no 
matter how many times transferred; the wrongful possessor 
had a like right as against any person wrongfully taking the 
goods from his possession or against any other person to 

270, in which loss of the horse, find- possession gave rights of ownership 
ing it in the possession of the de- against a subsequent wrongful taker, 
fendant, demand and refusal, are at this early time as well as there- 
specifically pleaded. after when trespass had supplanted 

* See authorities in preceding the appeal, 
notes. There can be no doubt that 8 See §79, post. 


3 i6 HISTORY OF ENGLISH AND AMERICAN LAW 

whom the goods might have been transferred after such 
wrongful taking, though he would be subject thereafter to 
a like recovery against himself by the real owner. This 
involved a very full recognition of ownership as distinguished 
from possession, as well as the protection of possession. 


§7<?. Ownership and Possession; Trespass De Bonis As - 
portatis and Replevin .—The appeal of larceny was gradually 
displaced by the action of trespass to goods beginning about 
the middle of the thirteenth century. During the first half 
of that century, writs of trespass were few and probably issued 
by the King’s Court as a favor; but, about the middle of the 
century, they began to be issued freely, probably as writs of 
course. 1 The immediate reason for this was a change in the 
character of the appeal, the appellee’s right to put himself 
upon the country, submitting the entire controversy to a jury 
of his neighbors instead of choosing between the different 
possible lines of defense, as before. The practice of vouch¬ 
ing warrantors, therefore, disappeared, and with it the pos¬ 
sibility of the appellor’s recovering the goods from one not 
a thief. The appeal became strictly a criminal prosecution 
for larceny; and, if the appellee was convicted by the jury, 
the appellor could get a writ of restitution of his goods if 
he proved that he made “fresh suit,” viz., had promptly 
started the prosecution against the thief, as a reward for his 
public-spirited action. All the thief’s goods were forfeited 
to the king, and for this purpose the stolen goods in the pos¬ 
session of the thief were regarded as his property. Therefore 


§78. 1 Ames, Hist, of Trover, in 
Sel. Essays Anglo-Am. L. Hist., 
Ill, 423. The first reported case of 
trespass in the King’s Court was 
apparently in 1199 (2 Rat. Cur. 
Reg. 34). In the Abbreviatio Pla- 
citorum, twenty-five cases are re¬ 
ported for the one year, 1252-1253. 


Trespass in the county and hundred 
courts was of far greater antiquity. 
See cases of the reign of Henry I, 
Bigelow, Placita Anglo-N ortnan- 
nica, 89, 98, 102, 127. Ames, Dis¬ 
seisin of Chattels, in Sel. Essays 
Anglo-Am. L. Hist., Ill, 549, note 2. 


THE LAW OF PERSONAL PROPERTY 


3i; 


this return of his goods to the appellor was a favor, a reward 
for good conduct. 2 Thus the appeal became a very risky 
remedy in tort for the recovery of the stolen property by the 
owner, instead of the definite and reasonably certain means 
of getting his goods back which it had been before. The 
appellee had to be convicted and the appellor had to prove 
“fresh suit” and capture of the thief with the goods in his 
possession by himself or one of his company in order to 
get the possible return of his goods as a favor or reward. 3 
Nevertheless the appeal supplied the one way of actually 
recovering the goods until the Statute 21 Henry VIII, ch. 11, 
provided for restitution of the stolen goods following con¬ 
viction of the thief after indictment (which had by that time 
displaced the appeal in criminal procedure) if the owner had 
given evidence or otherwise aided in bringing about the con¬ 
viction. 

The writ of trespass issued out of Chancery and directed 
the sheriff to attach the defendant to appear and answer the 
plaintiff in the King’s Bench. The count in trespass closely 
resembled the appeal of larceny, the words vi et armis being 
substituted for words of felony. The remedy in the King’s 
Court had the advantage over the appeal in the county and 
hundred courts of being much quicker; trial was by jury and 
the judgment was enforced by levy upon and sale of the 
defendant’s property, eliminating the ancient methods of trial 
of the local courts, wager of battle and of law, and the slow 
and ineffective methods of enforcement of judgment by dis¬ 
tress and outlawry. These advantages, together with the 


2 Poll. & Mait., Hist. Eng. Law, 
II, 164. 

3 See Ames, Hist, of Trover, in 
Sel. Essays Anglo-Am. L. Hist., Ill, 
420, 422, citing cases in Year Books 
of Edward I, Edward II, and Ed¬ 
ward III. If the prosecution failed 


because the accused killed himself, 
sought sanctuary, or died in prison, 
the appellor lost all chance of re¬ 
covering the goods. In addition, 
he ran the risk of serious injury in 
case of trial by battle if the accused 
claimed that method of trial. 


3 i8 HISTORY OF ENGLISH AND AMERICAN LAW 


change of the appeal into what was in practical effect a penal 
action only, made trespass the one effectual action for an 
owner wrongfully deprived of his chattels. 4 It was strictly 
an action in personam , resulting in a judgment for the value 
of the chattels carried away. The plaintiff could not recover 
his chattels; but as the action took the place of the old appeal 
by which the chattels were recovered, the damages awarded 
were their full value. 5 The appeal might still be used to 
recover the goods rather than damages, but this was seldom 
done. Trespass could be brought either by the true owner, 
possessor without right, or a bailee, just as the appeal could 
be. Possession of chattels, like possession of land, was own¬ 
ership as against all except any person or persons able to 
show an earlier and therefore better possession of which they 
had been deprived, and therefore the action could be main¬ 
tained by a possessor without actual right against any person 
other than the true owner who had wrongfully carried away 
or destroyed the goods. 6 The real owner was limited to his 
action against the person who had taken the goods from him; 
he could not maintain trespass against the second trespasser 
who had taken them from the first, because the second tres¬ 
passer, had not taken the goods from his possession. 7 Pos¬ 
sibly a special form of detinue would lie in such cases, as 
taking the place of the former action for res adiratae described 

*Ib., 422, 423. 

8 lb., 425, citing PI. Ab., 336, Col. 

2 Rot. 69, (14 Edward II); ib., I, 

346, Col. 2 Rot. 60 (17 Edward II). 

Y.B. 1 Henry IV, f. 4, pi. 5. 

«/&., 426. 

7 Trespass, a semi-criminal action, 
resulting in a fine payable to the 
king because of the offense as well 
as in the recovery of damages, cer¬ 
tainly could not be brought against 
one taking as bailee of the first 


trespasser, as he had done no 
wrong, or against a second tres¬ 
passer, because, in the analogous 
case of land, damages could not be 
recovered against a second dis¬ 
seisee, though a writ would lie for 
the recovery of the land from him. 
If trespass could not be maintained 
in the one case, it would be anom¬ 
alous to allow it in the other. Poll. 
& Mait, II, 166, 167. 


THE LAW OF PERSONAL PROPERTY 


319 


by Bracton and referred to above. Mr. Holdsworth asserts 
that this action was no longer used after trespass superseded 
the appeal of larceny, being simply a form or offshoot of the 
appeal. He points out that this old action was based on the 
loss of the goods by the plaintiff, the finding of them in the 
possession of the defendant, the demand for them, and the 
defendant’s refusal to give them up. As in detinue, it was 
the wrongful detention which was the gist of the action. 
He quotes from several cases in the Year Books which appar¬ 
ently recognized detinue against third persons in possession 
without right who were not bailees. 8 There is some author¬ 
ity, therefore, for the inference that the owner had a remedy 
to recover the value of his property from third persons in 
case of wrongful taking, where possession had passed in one 
way or another from the original trespasser; and, as Mr. 
Holdsworth says, it is hard to believe that the owner was left 
by the law without remedy in those cases until the subsequent 
development of trover to be discussed in the next section. 9 

A bailee could maintain trespass just as he could maintain 
the appeal of larceny. For some time the law refused to 
permit the bailor to maintain trespass against a wrongdoer 
who had taken his property from the bailee, just as the bailor 
was prevented from maintaining an appeal. During the four¬ 
teenth century, it was held, however, that the bailor could 
maintain trespass against the wrongdoer where the bailment 


8 Holdsworth, Hist. Eng. Law, 
III, 274-277. 

9 The usual position taken is that, 
during the long interval between the 
substitution of trespass for the ap¬ 
peal of larceny and the development 
of trover or detinue sur trover, the 
owner had no remedy against third 
persons taking or destroying his 
property held by a bailee. The 
ascribing of ownership to such third 


persons, mere wrongdoers or thieves 
in some of the cases in the Year 
Books, arose, apparently, out of this 
unfortunate situation, which in turn 
was due to the fact that, at the 
time the old appeal of larceny was 
passing out, writs were taking their 
final fixed form. See Poll. & Mait., 
II, 166; Ames, Hist, of Trover, in 
Sel. Essays, III, 427, 428. 


320 


HISTORY OF ENGLISH AND AMERICAN LAW 


was at will, both bailor and bailee having the right to sue, 
but a judgment in favor of one “shall oust the other of his 
action.” 1# This has continued to be the law. 

Replevin, as the action came to be called at a later time, 
could be maintained originally only against one who had made 
a wrongful distress, the usual case of distress being the seiz¬ 
ing of the personal property of a tenant found on the lease¬ 
hold property and the withholding thereof until rent in arrear 
had been paid. The distrainor could not sell the goods; he 
had a right to withhold their possession in order to worry 
the distrainee into payment of his debt. It was the usual 
method of compelling satisfaction of a judgment in the local 
courts under the early law. As there was no claim of owner¬ 
ship or dominion over the goods by a wrongful distrainor, 
trespass could not be brought against him. The owner’s 
remedy was the writ of replevin by which he could recover 
the goods or their value. If the defendant set up his owner¬ 
ship as a defense, the replevin had to be dismissed, and the 
plaintiff was forced to bring an appeal of larceny or an action 
of trespass. 11 In Edward Ill’s reign, the court held that 
the distrainor had to make his claim of ownership before the 
goods had been taken by the sheriff in starting the replevin, 
otherwise the replevin would proceed as before. 12 Shortly 
afterwards the plaintiff in replevin was able to recover the 
goods in the replevin case, in spite of the defendant’s claim 


19 Ames, Hist, of Trover, in Sel. 
Essays, III, 424, 425, citing Y.B. 
16 Edward II, 490, (1323); Y.B. 5 
Edward III, f. 2, pi. 5; Y.B. 48 
Edward III, f. 20, pi. 16. 

11 The jurisdiction of the sheriff 
or bailiff ceased as soon as the de¬ 
fendant merely alleged his owner¬ 
ship in the goods, without proof, 
1 Mich., Britton, 138. In Y.B. 21 
and 22 Edward I, 106, counsel stated 


that the distrainor did not avow 
ownership because “If we had 
avowed ownership, he could have 
sued an appeal against us.” See 
Ames, Hist, of Trover, in Sel. Es¬ 
says, III, 428, note 4. 

12 Y.B. 5 Edward III, f. 3, pi. n, 
(1331). Ames, Hist, of Trover, ib .; 
Ames, Disseisin of Chattels, ib., 551, 
552 - 


THE LAW OF PERSONAL PROPERTY 


321 


of ownership, by using a new writ in aid of the replevin, 
de proprietate probanda ; or he could proceed against the 
defendant in trespass as he preferred. 13 Thereafter in theory, 
supported by occasional dicta, replevin became a concurrent 
remedy with trespass; but the fact that no record exists of 
an action of replevin brought in a trespass case from the time 
of Edward III to the nineteenth century is conclusive proof 
that as a practical matter replevin played no part in the law 
except in distress cases down to the nineteenth century. 14 

These developments in the law, therefore, gave the owner 
a quick and far more effective remedy against a wrongful 
taker in trespass than he had formerly enjoyed in the old 
appeal of larceny. But he could no longer recover his goods. 
The theoretically concurrent remedy of replevin, even if it 
had been used, would not necessarily give him his goods in 
specie, as the defendant could keep the goods by paying the 
judgment for their value, the judgment being in the alter¬ 
native, either for the goods or their value. The doubtful 
question of whether he had a remedy in detinue against a 
third person’s taking or receiving the property from the 
original wrongful taker, was finally settled in his favor by 
the development of the action in detinue sur trover, as we 
shall see in the next section. 

§7p. Bailments.—Detinue and Trover .—The principle of 
law applying to the recovery of chattels, which grew up in 
Germany and France so as to be established law in the thir¬ 
teenth century, was that the owner could follow and recover 
chattels wrongfully taken from him against his will, no matter 
to whose hands they might have come; but, if they had passed 
to another with the owner’s consent, his sole action was 

18 Ames, Hist, of Trover, ib., 429; 14 See above articles by Professor 

45 Edward III, 9b; Rolle, Abr., II, Ames, ib., 432, 553. 

561 [G] 7; Ames, Disseisin of Chat¬ 
tels , ib., 551, 552 . 


a 


322 


HISTORY OF ENGLISH AND AMERICAN LAW 


against the person with whom he entrusted or bailed the 
goods.—“Where I have put my trust, there must I seek it” 
expresses the principle. 1 There can be no doubt that this is 
the starting point of English law. In case of wrongful taking, 
the owner could recover his goods by the appeal of larceny 
or its offshoot, the action for his goods, res adiratae. 2 But 
where he bailed the goods with another, his only action for 
a long time was against the bailee. He could not recover 
against a third person taking from the bailee either with or 
without the bailee’s consent. The bailee alone could maintain 
the appeal of larceny. The practical necessity of this at first 
is clearly apparent in the nature of the appeal and of its 
Saxon predecessor. As the person in possession, the duty of 
making hue and cry and of following the trail would naturally 
fall on him, not on the absent bailor. The wrong, from the 
public standpoint as a crime as well as a private injury, was 
in the wrongful taking from the possession of the bailee, not 
in an interference with a property right in the bailor; and 
therefore the bailor could not maintain the appeal, or its 
later concurrent or succeeding action, trespass. 8 The bailor’s 
only remedy was detinue against the bailee, which had slowly 
developed from the action of debt, and, like debt, was based 
on a slowly emerging but still mostly submerged notion of 
contract. The gist of this action was the wrongful detention 
of the goods by the bailee in violation of his duty to restore 
them on demand or on the ending of the bailment, just as 
the gist of the action of debt was the wrongful detention of 
the sum of money which the debtor owed. 4 The judgment 
in detinue gave the bailor either the thing detained or its 
value, and was satisfied by payment of the value of the thing 
as fixed by the judgment without the return of the thing 

§79. 1 Poll. & Mait., Hist. Eng. f. 151. 

Law, II, 153, 154. 4 Poll. & Mait., II, 172,173; Ames, 

2 See §77, ante. Hist, of Trover, in Sel. Essays, III, 

8 Poll. & Mait., II, 169; Bracton, 432-434. 


THE LAW OF PERSONAL PROPERTY 


323 


itself. It was therefore an action in personam rather than 
in rein* At first there seems to be no doubt that the bailee 
was liable to the bailor as insurer for the goods, so that, if 
they were taken from him without his fault, he would still 
be answerable for their value to the bailor. 8 Judge Holmes 
reaches the conclusion, after a careful examination of the 
earliest decisions, that this strict liability of the bailee as 
insurer arose from the fact that he alone could sue the wrong¬ 
ful taker. 7 It has been contended, however, that the bailee 
can sue only because he is liable over, and that, if he has a 
good defense to an action against him by the bailor, he cannot 
sue the wrongdoer. 8 Pollock and Maitland say: “Perhaps 
we come nearest to historical truth if we say that between 
the two old rules there was no logical priority. The bailee 
had the action because he was liable, and was liable because 
he had the action.” The spirit and letter of the early law, 
in land cases as well as cases affecting chattels, are entirely 
hostile to the position taken in Claridge’s Case, above referred 
to, since possession was title as against all not having an 
earlier possession and therefore a better title, which fully 
explains the bailee’s right to sue in these cases. The infer¬ 
ence is reasonable that his liability as insurer was due to his 
right to sue wrongful takers; but it is at best a mere inference 
which has not been established as an historical fact. At any 
rate, in Bracton’s time, the tendency to relieve the bailee from 
liability in case of loss of the goods without fault on his part 
began to appear, and Bracton went a long way in asserting 
this principle. 9 The subsequent acceptance of the rule that 


0 Bracton, f. 102b. 

8 Holmes, Com. Law, 175; Glanv., 
lib. X, cap. 13; Sel. Civ. Pleas, 
pi. 8. 

7 Holmes, Com. Law, chapter on 
Bailments, particularly pp. 167, 170. 

8 Claridge v. South Staffordshire 
Tramway Co. (1892), 1 Q.B. 422, 


so deciding. This case was over¬ 
ruled in The Wink field (1902), 
Prob. D. 42. 

9 Bracton, f. 62b, 99; Fleta, 120-1. 
See Holmes, Com. Law, 176, criti¬ 
cizing Bracton’s statements as pre¬ 
mature. 


324 


HISTORY OF ENGLISH AND AMERICAN LAW 


the bailee is not liable if he can show that the goods were 
taken from him without fault on his part was probably respon¬ 
sible for the change in the law giving the bailor a concurrent 
action with the bailee against the wrongful taker, as other¬ 
wise in many cases he would have no remedy whatever. From 
1323 on, the bailor’s right to maintain trespass, concurrently 
with the bailee, was admitted where the bailment was at will; 
and so the law has remained. 10 

Though the bailor as well as the bailee could maintain tres¬ 
pass against wrongful takers, he could not maintain detinue 
against anyone but the bailee, the action depending on a 
breach of the bailee’s duty to return the chattels on demand, 
a duty consentual or contractual in its nature. As late as 
1370, we find this principle still clearly laid down. 11 Shortly 
afterwards, the law changed so as to permit detinue against 
any third person by the bailor, a bailment to the bailee and 
“a general devenerunt ad mantis of the defendant” being 
alleged. 12 

Detinue was extended so as to permit the recovery of the 
goods or their value from any third person wrongfully detain- 


10 See preceding section, note 10. 

See article by Professor Beale, 
Harv. L. Rev., XI, 158-168. Pro¬ 
fessor Beale asserts that it is doubt¬ 
ful whether a general bailee was 
ever absolutely liable as an insurer. 
He refers to the following cases as 
holding that loss of the goods with¬ 
out fault of the bailee was a good 
defense. Brinkburn, Cartulary, 105, 
(1299), seals removed from char¬ 
ters by robbers; Fitz., Detinue, 59, 
(1315). theft of chest with chattels 
(see Holmes, Com. Law. 176, for 
different construction of this case) ; 
12 & 13 Edward III, 244, (1339), 
goods destroyed by fire; 29 Ass., 
163, pi. 23, (1355), another case of 


theft. See Holmes, id., for differ¬ 
ent construction of this case. In 
actions on case, bailees were not 
liable unless negligence was shown. 
See cases of 15th century cited by 
Professor Beale. On the whole, the 
evidence is strong that bailees were 
relieved of liability as insurers 
about the time bailors were given 
actions against trespassers. 

11 Y.B. 43 Edward III, f. 29, pi. 
11. 

12 Y.B. 11 Henry IV, f. 46, B. pi. 
20; Y.B. 12 Edward IV, f. 11, pi. 2, 
and f. 14, pi. 14; Y.B. 10 Henry 
VII, f. 7, pi. 14; Ames, Hist, of 
Trover, in Sel. Essays, III, 435. 


THE LAW OF PERSONAL PROPERTY 


325 


ing them, though there had been no bailment. We have 
already noticed how the owner could recover the thing or its 
value from any third person in whose possession it might be, 
by omitting the words of felony in the appeal of larceny and 
simply sueing for the goods or their value as having in some 
way or other gone from his possession, his res adiratae, as 
described by Bracton. 13 Reference has already been made to 
the cases discussed by Mr. Holdsworth which indicate that 
this remedy existed in the form of an action of detinue in the 
fourteenth century down to the time when Littleton asserted 
that detinue would lie against any third person for goods 
which had been lost, whether there had been an original bail¬ 
ment by the owner or not. 14 After this case in which the 
defendant was held as a finder of lost goods, detinue sur tro¬ 
ver , upon the allegation that the chattel had been lost and was 
afterwards found by the defendant, became the regular form 
of declaration where the action was not brought against the 
bailee on a bailment. 15 


18 See § 77 . ante. 

14 See §77, ante. In Y.B. 33 Hen¬ 
ry VI, f. 26, pi. 12, as against Pris- 
cot, C. J., who asserted that detinue 
would not lie for lost goods unless 
there had been a bailment, Littleton 
insisted that detinue would lie, and 
his view prevailed. In this case, 
Littleton said: “This declaration 
per inventionem is a new found 
Halliday: for the ancient declara¬ 
tion and entry has always been that 
the charters ad manus et posses¬ 
sionem devenerunt generally, with¬ 
out showing how.” The “new 
found Halliday” to which Littleton 
referred, was in describing the de¬ 
fendant as a finder, not in allowing 
detinue in the absence of bailment, 
which had already become estab¬ 
lished law. 


15 See Liber Intrationwn (1510), 
f. 22, for a count alleging that 
plaintiff was possessed of a box of 
charters; that he casually lost it, 
so that it came to the defendant by 
finding, who refused to give it up 
on request. Compare this with the 
count in Novae Narrationes, ff. 65b, 
66, referred to by Mr. Holdsworth, 
Holdsworth, Hist. Eng. Law, III, 
270, in which W. alleged that he 
had a horse, that he lost it, that 
after a search he found it in the 
custody of W. of E., that he proved 
his ownership and demanded the 
horse, but that the defendant was 
not willing to give it up. Though 
a finding by the defendant is not 
specifically alleged, it is clearly im¬ 
plied, and in other respects the 
counts are the same. A note in 


326 HISTORY OF ENGLISH AND AMERICAN LAW 


Thus trespass would lie in all cases of wrongful taking as 
against the wrongdoer, detinue in all cases of bailment against 
the bailee, and detinue sur trover in all cases against third 
persons taking from the wrongful taker or from a bailee 
whether tortiously or as purchasers. But these remedies were 
still inadequate in certain cases. Thus, if the possessor dam¬ 
aged the goods, permanently reducing their value, but deliv¬ 
ered them to the owner in the damaged condition, a special 
action on the case was necessary to recover this damage. If, 
after judgment in detinue, the goods were then returned in 
damaged condition, a similar action on the case was necessary. 
If a person other than the bailee destroyed the property, it 
was held that detinue would not lie; and an action on the 
case was again required. 16 In 1479, an action in case to hold 
the bailee liable for destruction of the bailed property was 
sustained as concurrent with detinue. This is the first case 
in which the charge of “converting to his own use” the plain¬ 
tiff’s goods was employed. 17 In each of the cases of damage 
to the chattels, the court held that an action on the case would 
lie in the first place to recover the entire amount, value of 
goods, damages for detention, and damage to goods, so as 
to prevent multiplicity of suits. This was the beginning of 
the action of trover and conversion. Later a wrongful sale 
was treated as a conversion for which the action on the case 


Y.B. 21, 22 Edward I, sets forth 
the same doctrine, indicating that 
it was law in the King’s Court as 
well as in the local courts. Sev¬ 
eral other cases of the Year Books 
in the fourteenth century are cited 
by Mr. Holdsworth as recognizing 
the right to maintain detinue in 
cases where the thing was lost, and 
no bailment existed. The proba¬ 
bilities are strong that detinue sur 
trover developed from the old ac¬ 
tion for res adiratae, giving a rem¬ 


edy not much used except in the 
local courts prior to the case in 33 
Henry VI above discussed. That 
this form of remedy was used free¬ 
ly in the local courts, especially in 
cases of estrays, see Ames, Hist, of 
Trover, in Sel. Essays, III, 437. 

1# Ames, Hist, of Trover, in Sel. 
Essays, III, 441, 442, citing cases in 
Year Books. 

17 Y.B. 18 Edward IV, f. 23, pi. 5. 
Ames, ib., 442. 


THE LAW OF PERSONAL PROPERTY 


327 


would lie. 18 The action of trover and conversion thus became 
concurrent with detinue in all cases of misfeasance. The 
count in trover has, in addition to the allegations of the count 
in detinue sur trover, the additional phrase that the defendant 
converted the chattel to his own use. 

Early in the seventeenth century, the court held that trover 
would lie for a wrongful taking, and it became concurrent 
with trespass. 19 A finder refusing to deliver the goods to 
the owner on request had been held liable in trover in 1586. 20 
After refusing in several cases to hold that the bailee would 
be liable in trover for a refusal to return the goods on demand, 
it was finally settled in 1675 that the action would lie in that 
case also, making trover concurrent with trespass and detinue 
in all cases. 21 It has actually superseded both trespass and 
detinue, so that the modem action for the recovery of the 
value of personal property wrongfully withheld, whether taken 
against the will of the owner or by bailment, is trover and 
conversion. The action of trespass de bonis asportatis is used 
in cases of wrongful interferences not amounting to a con¬ 
version where the damages sought do not include the value 
of the goods involved. 

Up to 1770, the courts refused to treat a wrongful distress 
as a conversion, since the goods are seized as admittedly the 
property of the owner. But, in 1770, Lord Mansfield in 
practical effect overruled these cases; 22 and, since then, a 
wrongful distress has been generally regarded as a conversion. 
Thus trover will lie concurrently with replevin in distress 
cases. 

The modern action of replevin has become by statute a real 
action by which the owner may recover his chattel in specie 

18 Keilw., 160, pi. 2. 89, cited in Ames, Hist, of Trover, 

19 Bassett v. Maynard, Rolle, Abr., in Sel. Essays, III, 442, 443. 

I, 105 (M.) 5; Bishop v. Montague, 20 Eason v. Newman, Cro. Eliz., 
Cro. Eliz., 824, Cro. Jac., 50; Lever- 495 - 

son v. Kirk, Rolle, Abr., I, 105 (M.) 21 Sykes v. Wales, 3 Keb. 282. 

10; Kinaston v. Moore, Cro. Car., 22 Tinkler v. Poole, 5 Burr. 2657. 


328 HISTORY OF ENGLISH AND AMERICAN LAW 


and the judgment cannot be satisfied in the alternative by 
paying the value of the chattel instead of turning over the 
chattel itself. Up to the middle of the nineteenth century, 
however, the judgment was in the alternative, so that the 
defendant could at his election keep the chattel and pay the 
value thereof in satisfaction of the judgment in replevin. 
Trover, or trover and conversion, and replevin are concurrent 
remedies where the wrongdoer is in possession of the chattel 
involved, and the owner may pursue one remedy or the other 
at his election. 

§80. Nature of Ownership and Possession of Chattels .— 
Having traced the remedies by which ownership and pos¬ 
session of chattels have been protected, we can now get an 
adequate conception of the character of that ownership and 
the relation thereto of possession. In the main, it is the same 
as ownership and possession of land. The most important 
difference is in the lack of a real remedy by which the chattel 
itself could be recovered, as opposed to the elaborate real 
actions which existed from Glanville’s time for the recovery 
of real property. That this was a real defect in the law goes 
without saying. The only reason or excuse is that no great 
need of a real remedy had been felt prior to modern times; 
otherwise it would have been provided. Apparently owners 
of chattels have been satisfied with a judgment for the value 
of the chattel as a substitute for the chattel itself, since the 
usual chattel may be readily duplicated with the money recov¬ 
ered in an action brought to recover its value. But the true 
worth of the right to recover the chattel itself instead of its 
value in money is the greater certainty and security which 
such an action gives. The plaintiff is sure of his chattel when 
he gets it back; a judgment for its value may or may not be 
collectible. The modern action of replevin generally provided 
for by statute removes this defect, and gives to ownership of 
chattels the same protection which ownership of land has 
always enjoyed. 


THE LAW OF PERSONAL PROPERTY 


329 


Prior to 1250, ownership of chattels was protected by the 
archaic appeal of larceny, weighted with the dangers and most 
of the drawbacks of the ancient writ of right by which land 
could be recovered prior to the introduction of the possessory 
assizes and writs during Henry II’s reign. No relief cor¬ 
responding to these writs was given the owner of chattels. 
Nearly a hundred years later, the writ of trespass took the 
place of the appeal of larceny, giving a full and effective 
remedy to recover the value of the chattel from the wrongful 
taker, but giving no remedy to the real owner against other 
persons subsequently coming into possession of his chattel 
through the wrongful taker. For over a hundred years, this 
anomalous condition of things continued, the only remedy 
which possibly may have existed being a continuation of a 
form of the old appeal in the shape of a special kind of detinue 
against third persons to whom the owner’s chattel may have 
come who refused to give it up on demand. The develop¬ 
ment of trover, giving a definite clean-cut action for the full 
value of the chattel in all cases of wrongful taking or wrong¬ 
ful detention involving a conversion, ended this situation, 
giving ownership and possession full and adequate protection, 
except for the absence of a real remedy by which the chattel 
itself could be recovered, replevin having been limited, in 
practice at least, to distress cases only, down to modern times. 

We are bound to conclude that the law recognized the same 
absolute ownership in a chattel which it recognized in land— 
more absolute since it was free from feudal tenure. The 
right of the owner to use or consume it as he pleased, to 
transfer it by sale or gift as he pleased, or by will, its devo¬ 
lution to his next of kin on his death, are conclusive evidences 
of absolute ownership. The defects of remedies which we 
have noticed, particularly from the middle of the thirteenth 
to about the middle of the fifteenth centuries were merely 
defects in the law. The ascribing of ownership, “property,” 
to thieves or others wrongly in possession of chattels, by 


330 


HISTORY OF ENGLISH AND AMERICAN LAW 


cases in the Year Books, was simply a form of expression. 
No one can really believe that they were true owners, or were 
then so regarded. The right to maintain trover against any 
person guilty of a conversion, which eventually was shaped 
out of the uncertain remedies of this period, finally settled 
the matter. The true owner retained his ownership as against 
all persons thereafter taking or withholding the chattel with¬ 
out right, until he had elected to transfer title to the wrong¬ 
doer by bringing his action and enforcing the judgment re¬ 
covered for a money equivalent. This is proved by the rule 
that title does not pass to the man who has converted a chattel 
until the judgment in conversion is satisfied. 1 

There can be no doubt that a disseisor of land and a dis¬ 
seisor of chattels get by wrong a title which is good against 
all the world except the true owner; that possession is owner¬ 
ship as against all except those who have had an earlier pos¬ 
session of which they have been wrongly deprived, and there¬ 
fore a better ownership; that the disseisee of both land and 
chattels is left with merely a chose in action. But we must 
remember that this is mere form. Beneath the form is the 
substance of complete potential ownership, absolute right, in 
the true owner. He has his chose in the action because of 
this absolute ownership. It was found necessary to give the 
fullest protection to the possession in the early law, not merely 
or principally to prevent breaches of the peace if wrongdoers 
could be ousted by strangers with impunity, but principally 
to protect the true owner because in the very great majority 
of cases, so great that the minority is almost negligible as a 
practical matter, the possessor is owner, and adequate pro¬ 
tection of possession is adequate protection of ownership. It 
would be nonsense to assume that the possessive or tortious 
title of the wrongful taker of land or chattel is protected for 
the sake of the wrongdoer, or even merely to preserve the 

§80. 1 Brinsmead v. Harrison, L. 

R. 6 C. P. 584. 


THE LAW OF PERSONAL PROPERTY 


331 


peace. It is mainly, almost solely, because it tends to protect 
the rightful owner who will be the possessor in nearly every 
case. This is just as true of chattels as of land. Technicality 
had its way with the extremely narrow lawyers and judges 
of the fourteenth and fifteenth centuries, and remedies were 
faulty in consequence. The law of personalty had hardly got 
started in the thirteenth century. But the later law fully 
recognized and protected ownership of chattels as it did of 
land, except that it left the owner with a right to money 
compensation instead of a right to recover the chattel, with 
which he was apparently satisfied, until the modern law of 
replevin corrected that omission. 2 

The bailee’s ancient right to recover the full value of chat¬ 
tels wrongfully taken from him, subject to the duty of account¬ 
ing over to the bailor, is fully maintained by the modern 
cases. 3 But the bailor has a far greater interest than the 
bailee in practically all of these cases; and to have his rights 
concluded by a suit brought by the bailee and possibly lost 
or an inadequate recovery secured possibly through negligent 
handling of the case by the bailee’s attorney without giving 
the bailor notice of the action so that he might appear by his 
own attorney to protect his interests, presents a situation 
which calls for correction. Statements indicating that he 
may intervene appear in some of the cases. Thus, in Gillette 
v. Goodspeed, 69 Conn. 363, 370, the court said: “If goods 
in the hands of a bailee are lost by the wrongful act of the 
third party, the latter is liable to him for their full value, 
unless the owner interferes by a suit for his own protection.” 
In Johnson v. Holyoke, 105 Mass. 80, and Finn v. Western 
Railroad Corporation, 112 Mass. 524, the court implied that 
the bailee’s action must be with the express or implied consent 

2 The Winkfield, (1902), Prob. D. 80; Harrington v. King, 121 Mass. 
42; Chamberlain v. West, 37 Minn. 269. 

54; Johnson v. Holyoke, 105 Mass. 8 See discussion, Poll. & Mait., 

Hist. Eng. Law, II, 176-181. 


332 


HISTORY OF ENGLISH AND AMERICAN LAW 


of the bailor. An obvious solution would be to let each sue 
for damages incurred by himself only, as in the analogous 
case of trespass by a third party on land occupied by a tenant 
for years or for life where the trespasser violates the land¬ 
lord’s rights by damaging the property in a permanent way. 


§81. Transfer of Title to Chattels .—There can be no 
doubt that, at early common law, title to chattels could be 
transferred inter vivos only by physical delivery of the chat¬ 
tels. 1 No doubt this idea was carried over from transfers of 
chattels to conveyances of land, making livery of seisin fol¬ 
lowed by an exchange of a real possession necessary in such 
conveyances, as transfers of chattels must have been common 
long before land became a subject of trade among men. It 
is still the law that a gift of a chattel not accompanied by 
delivery is bad; though, at an early day, a deed of gift under 
seal was held to be good to transfer title, the instrument of 
transfer under seal operating to transfer title without delivery 
of the chattel. Sales constitute the other exception, a valid 
sale transferring title without delivery, the intent being that 
title shall pass at once, not later on delivery of the chattel, 
and that intent being presumed if the property sold is identi¬ 
fied, the price fixed, and the other terms of the sale are all 
determined. 2 

The nature of ownership as being merely the earliest pos¬ 
session, is illustrated very clearly by cases of original acqui¬ 
sition of ownership of chattels, acquisition of ownership by 
a finder of lost chattels, and ownership acquired by adverse 
possession. A hunter in taking possession of game becomes 


§81. 1 See Zimmerman v. Shreeve, 
59 Md. 357, and cases cited in War¬ 
ren, Cas. Prop., I, 72, note. Glanv., 
lib. X, cap. 14; Bracton, f. 62; 
Pleta, 127; Cochrane v. Moore, L. R. 
25 Q.B.D. 57, 72, 73; Warren, Cas.. 
Prop., I, 198. 


2 See statement in Cochrane v. 
Moore, supra. 72, 73. These devel¬ 
opments are incident to the growth 
of the law of contract, and will be 
discussed in that connection. See 
§110, post. 


THE LAW OF PERSONAL PROPERTY 


333 


owner in the most complete way. Such game is not property 
while in the wild state because not owned by anyone. When 
reduced to possession by the hunter, it becomes the absolute 
property of the possessor because no one has had an earlier 
possession. Possession gives the hunter ownership against 
all the world because no one has a better right through an 
earlier possession.* 

Lost property belongs to the finder as against everyone 
other than the true owner who lost it, because no one else has 
had an earlier possession. Therefore, if the former owner 
cannot be found, the finder has complete ownership. 3 4 5 * * For 
the same reason, the finder does not lose his ownership if he 
loses the thing after having taken possession of it. A sub¬ 
sequent finder must restore it to him because of his better 
right arising out of his earlier possession. 8 

Property, whether real or personal, held adversely by a 
wrongdoer for the period fixed by the Statute of Limitations 
within which an action may be brought for its recovery, 
twenty years usually in the case of land, generally six years 
in the case of chattels, becomes the absolute property of the 
adverse holder. His possession makes him owner against all 
the world other than the true owner; and the true owner’s 
earlier right arising out of his earlier possession is lost because 
his right to recover possession is barred by the statute. 8 


§82. Transfer or Assignment of Choses in Action .—The 
owner of land in the adverse possession of a disseisor had, 


3 Bracton, lib. II, c. 1, 8; Fleta, 
lib. Til, c. 2, 175; Pierson v. Post., 
3 Caines (N. Y.), 175. 

4 Armory v. Delamirie, 1 Strange 
505 (1722) ; Elwes v. Brigg Gas. 
Co., L. R. 33 Chan. Div. 562. 

5 Lawrence v. Buck, 62 Me. 275; 

Clark v. Maloney, 3 Harr. (Del.) 

68 . 


• Chapin v. Freeland, 142 Mass. 
383, and cases cited by Holmes, J. 
See statement contra as to chattels 
in Muller v. Dell, (1891), 1 Q.B. 
468, by Lord Esher, M. R. 

As to title to real property by 
adverse possession, Stokes v. Berry, 
2 Salk. 421, (1699) ; School Dist. v. 
Benson, 31 Me. 381. For full line 


334 


HISTORY OF ENGLISH AND AMERICAN LAW 


as we have seen, only a right of entry, a right to recover the 
land, a mere chose in action. Nevertheless, that right of 
action existed because he was absolute owner; and the adverse 
possessor was given the benefit of the usual actions to protect 
his possession because the protection of possession was re¬ 
quired in order adequately to protect ownerhip in the great 
majority of cases. Nevertheless, the relentless and unreason¬ 
ing logic of lawyers and judges, in entire disregard of the 
real ownership, led to the conclusion that this, like other rights 
of action, could not be assigned. Therefore the owner’s deed 
of conveyance of the land or other attempted transfer of his 
interest in the land was void. He had to recover possession 
before he could convey. 1 In 1845, an English statute made 
his interest transferable, and similar statutes have been enacted 
in many states of the United States; other states have broken 
away from the old rule by judicial decision without the aid 
of statutes. 2 In New York, this relic of ancient logic is part 
of the Real Property Law of 1896, and many of the states 
still adhere to the old rule. 3 This right of entry may now be 
devised everywhere; but, before 1833, it could not be devised 
in England, or in Massachusetts until 1836. 4 It passed to 
the heir in case of intestacy; but, if he died before reducing 
it to possession by recovering the land, it would revert to 
those who would be then the heir or heirs of the original 
intestate. Of course, this old rule has ceased to be law. 6 If 
the owner married after being disseised and died without 


of authorities as to both real and 
personal property, see Ames, Dis¬ 
seisin of Chattels, in Select Essays, 
III, 567 - 578 . 

§82. 1 Partredge v. Strange, Plow., 
88; Bract., f. 376; Co. Litt., 266a; 
Ames, Disseisin of Chattels, in Sel. 
Essays, III, 543, 544. 

2 8, 9 Viet., ch. 106, §6. See 
Ames, Disseisin of Chatteels, supra, 
ib. 


a N. Y. Real Prop. L., §260. See 
Ames, Disseisin of Chattels, supra, 
544, note 5, for list of cases. 

4 Ames, Disseisin of Chattels, ib., 
544; Jarmon, Wills (4th ed.), 49. 

5 Carr v. Anderson, 6 N. Y. App. 
Div. 6, 10; Ames, Disseisin of Chat¬ 
tels, ib., 545. 


THE LAW OF PERSONAL PROPERTY 


335 


recovering his seisin, his widow did not take dower because 
he was never seised, though the heirs inherited the property. 
By clinging to the technical requisite of seisin as essential to 
dower, the majority of the states still adhere to this rule, 
though the more progressive courts have cast it out as obso¬ 
lete, seisin no longer being material, and in England and many 
of the states dower is given in such cases by statute. 6 In a 
general way, the same observations apply to curtesy. There¬ 
fore it appears that this result of the narrow logic of the 
common law courts has either been corrected already in most 
jurisdictions or stands a good chance of being corrected in 
the future. 

Rights of entry for breach of condition, even after breach, 
could not be assigned as we have seen, though they amounted 
to ownership of the property. Changes by modern statutes 
of this rule have already been referred to, and the same stat¬ 
utes now permit the transfer of a possible right of reverter 
arising in connection with an estate in fee upon limitation. 7 
There is no difference in substance between these contingent 
rights of entry and reverter on the one hand, and contingent 
remainders and future executory estates on the other, and 
these latter may now be freely conveyed as we have seen. 8 
It is to be expected, therefore, that rights of entry in all cases 
as well as possibilities of reverter will become freely alienable 
in all states, as contingent remainders and executory estates 
now are. 

Rights of action to recover personal property or its value, 
and rights of action for breach of contract were, like other 
personal actions, not assignable at common law. In the case 
of debts, however, an effective substitute was found by making 
the assignee attorney in fact to sue and enforce the right of 

# See Walsh, Real Prop., 156, note T See §60, ante, particularly note 
10; Ames, Disseisin of Chattels, ib., 18. 

546. 8 See §65, ante, particularly note 4- 


330 HISTORY OF ENGLISH AND AMERICAN LAW 


action in the name of the assignor, but for his own benefit.* 
Such assignments by aid of a power to collect or enforce the 
claim were, however, held to be champertous and void from 
the beginning of the fifteenth century or earlier until late in 
the seventeenth century, except when made to creditors in 
discharge of debts. 10 In the meantime, the assignability of 
negotiable paper had become established, the development of 
business forcing the courts to adopt the rules of the law mer¬ 
chant to that extent. The same impelling force of a develop¬ 
ing commercial and business life forced aside the objection 
of maintenance; and, from the latter part of the seventeenth 
century to the present time, non-negotiable rights of action 
in contract have been freely assignable by using a power of 
attorney to collect or enforce the debt in the name of the 
assignor for the benefit of the assignee. 11 

Up to 1845, no attempt to assign a right of entry against 
a disseisor of land by this device of a power could have suc¬ 
ceeded, because the Statute 32 Henry VIII, ch. 16, made void 
all grants by the owner of land adversely held. In the United 
States, however, the prevailing rule has been that the grantee 
of such owner may sue in the owner’s name as his attorney by 
implication. This principle makes such conveyances effective 


9 Ames, Disseisin of Chattels, in 
Set. Essays, III, 584. See ib., note 
2, in which Professor Ames gives 
an instance of such an assignment 
made in 1309. Bracton treats “ac- 
tiones” as personal things incapable 
even of transfer by will, ff. 10b, 
61 a, 6ib. That they were unassign¬ 
able under the early law because of 
their personal character, no “res” 
to deliver, no estate or other incor¬ 
poreal interest in a res to grant, is 
clear. Holdsworth, Hist, of Choses 
in Action, in Harv. L. Rev., 
XXXIII, 997, 1000. 


10 Ib., 584. Laws against cham¬ 
perty and maintenance were made 
necessary in the Middle Ages by the 
technicality and expense of legal 
proceedings and the corruptibility 
of officers of the law, which made 
trafficking in suits very easy and 
profitable. Holdsworth, Hist, of 
Choses in Action, in Harv. L. Rev., 
XXXIII, 997, 1007. 

11 Professor Ames points out that 
an express power of attorney was 
required at first, (Cro. Jac., 342) ; 
but later the power was implied 
from the facts. 


THE LAW OF PERSONAL PROPERTY 


337 


as a practical matter in states where no statute has been enacted 
permitting conveyances of this kind. 12 There seems to be 
no doubt that rights of action in conversion or replevin may 
be assigned by aid of the same device of a power, expressed 
or implied, in both England and the United States. 1 * There¬ 
fore the real owner’s interest in land may now be conveyed 
by express statutory provision or by judicial decision in Eng¬ 
land and most of the states; in the remaining states, it may be 
transferred by assignment of the right of action with power 
of attorney to sue. The real owner’s interest in chattels ad¬ 
versely held can be transferred only by way of assignment 
of his right of action by power of attorney. No doubt other 
actions for damages to property real and personal, in trespass, 
nuisance, and negligence, may be assigned in the same way, 
the general rule being that all actions which survive the death 
of either party are capable of assignment. 14 

It should be remembered that the transfer of negotiable 
instruments passes the title to the chose in action, so that the 
transferee takes the title free of equities if he is a purchaser 
for value without notice. Conveyance of the owner’s right 
of entry transfers his right and title to the land in the same 
way under the law now prevailing. Why should not the same 
law apply to the owner’s right to personal property adversely 
held, and to all other rights of action assignable by power of 
attorney? This question requires a careful consideration of 
the reasons why, at common law, a right of action could not 
be assigned. 


12 See list of cases cited by Pro¬ 
fessor Ames, ib., 587, note 1. 

13 Ib., 587. Professor Ames cites 
no English case; but cites American 
cases, notes 2, 3. For English cases 
see Holdsworth, Hist. Choses in 
Action, in Harv. L. Rev., XXXIII, 
997, at 1018. 

14 As to survival of these actions 
in England, see §98, notes 17, 18, 


post; in U. S., §98, notes 20 and 21, 
post. That actions for mere un¬ 
liquidated damages to real or per¬ 
sonal property involving no conver¬ 
sion or disseisin cannot be assigned 
according to modern English cases, 
see Holdsworth, Hist. Choses in 
Action, in Harv. L. Rev., XXXIII. 
1022-1024. 


338 HISTORY OF ENGLISH AND AMERICAN LAW 


Professor Ames, in his article Disseisin of Chattels, estab¬ 
lishes beyond question that this non-assignability was a prin¬ 
ciple of the broadest application. “A creditor could not assign 
his debt. A reversioner could not convey his reversion, nor 
a remainderman his remainder. A bailor was unable to trans¬ 
fer his interest in a chattel, and, as we have seen, the disseisee 
of land or chattels could not invest another with his right to 
recover the res or its value. In a word, no right of action, 
whether a right in rem or a right in personam , whether aris¬ 
ing ex contractu or ex delicto , was assignable either by act 
of the party or by operation of law.” 15 

Professor Ames declares this to be a principle of universal 
law based on the fact that a right of action necessarily involves 
a personal relation between the parties. “But a personal rela¬ 
tion, in the very nature of things, cannot be assigned.” He 
qualifies this with the statement that a chose in action may 
be assigned if the person liable gives his consent, either at 
the time the right of action was created, or thereafter; or if 
its assignment is provided for by statute or other act of sov¬ 
ereignty. Consent to the assignment given in advance is 
illustrated by a rent, covenant, warranty, or other obligation 
expressly made to the other party and his assigns; consent 
afterwards given is illustrated by novation. Consent to grants 
of reversions and remainders were given by the tenant’s attorn¬ 
ment which was necessary to make the grant effectual. Just 
why the personal relation of a disseisor of land or of a chattel 
to the owner should operate to prevent the owner from trans- 


15 Select Essays, III, 580, 581. 
Professor Holdsworth takes the 
same view, that choses in action in¬ 
volve a purely personal relation of 
the parties and therefore their as¬ 
signment is unthinkable. It is odd 
how successful the later law has 
been in accomplishing the unthink¬ 
able and the impossible, and odder 


still that these learned men should 
not have frankly recognized the 
fact that these rights were merely 
thought to be unassignable, owing 
to primitive limitation in legal 
thought. Holdsworth, Choses in 
Action, in Harv. L. Rev., XXXIII, 
997, 1002, 1003. 


THE LAW OF PERSONAL PROPERTY 


339 


ferring his interest in the land or chattel does not appear. 
Certainly the consent of a tortious disseisor to such transfer 
would be immaterial. 

The fact that every development of the law has been away 
from non-assignability toward free assignment of rights of 
action; that, technicality aside, rights of action are property 
subject to ownership; that free transfer of property has always 
been a fundamental principle of the law, at least since the 
latter part of the thirteenth century, all indicate very clearly 
that the non-assignability of rights of action, instead of being 
a fundamental principle arising necessarily out of the nature 
of things, is a mere defect in the law having its basis in a 
primitive imperfect conception of the power of alienation, 
which common sense and a developing legal system have been 
striving to correct. 

This defective idea of alienation is clearly illustrated, as 
we have seen, in the early law which prevented the creating 
of future estates that would put seisin in abeyance—based 
entirely on the notion that no future estate could be created 
and transferred without making livery of seisin to someone; 
that the grantor could not retain the seisin and create a future 
estate in another at the same time. The courts apparently 
could not conceive of the creation and transfer of an incor¬ 
poreal interest without delivering the land by livery of seisin. 18 
We have seen how this error was corrected under the Statute 
of Uses and by modern legislation. 17 The same notion was 
back of the requirement of attornment by a tenant for life 
or for years to a grantee of a reversion or remainder in fee, or 
by the tenant in fee to a grantee of a seignory. The attorn¬ 
ment could be made by parol or by payment of a nominal sum. 
In most cases the tenant could be compelled to attorn by the 
courts. 18 It is evident that this was a technical matter—no real 

18 §§63, 64, ante. Bracton, f. 81b, f. 82b; Y.B. 32-3 

17 §§63-65, ante. Edward I, 43; Poll. & Mait., II, 

18 Poll. & Mait., I, 328, citing 92, 93 - 


340 


HISTORY OF ENGLISH AND AMERICAN LAW 


consent is consistent with attornment enforced by the courts. 
There can be no doubt that reversions and remainders could be 
conveyed without any real consent on the part of the tenant; 
whether treated as rights of action or as estates, from the 
thirteenth century onward, they could be transferred. The 
empty form of attornment was finally abolished by the Statute 
4 and 5 Ann, ch. 16. Common sense and a more developed 
legal thought won the day, here as in the case of future 
executory estates. 

We have pointed out in the first part of this section that a 
right of entry by the owner of land against the disseisor could 
not be assigned, though courts and writers from Bracton 
down have all recognized him as the true owner. Any sug¬ 
gestion that the wrongdoer’s consent should be required is 
too absurd for discussion. It is probable that the objection 
of maintenance made such assignments impossible before any 
real demand for them had arisen. At any rate, the Statute 
32 Henry VIII, ch. 16, made such grants void; and, as the 
developing commercial spirit of more modern times did not 
react against restrictions of this kind affecting lands, as it did 
in the case of contracts, this rule was not changed until the 
last century as stated above. The important fact is that reason 
and an enlightened conception of conveyance has again tri¬ 
umphed, and rights of entry may now be freely conveyed in 
most jurisdictions without the device of a power to sue. The 
owner’s estate in the land passes under the grant. 

The requirements of a developing commercial life forced 
upon the courts the adopting of the law merchant permitting 
the transfer of commercial paper made payable to order or 
to bearer, so that title to the chose in action passes to the 
transferee. It is argued that this is in accord with the prin¬ 
ciple of non-assignability as above laid down, because con¬ 
temporaneous consent is given to the transfer by making the 
instruments payable to order or to bearer. But the cases 
already considered indicate clearly enough that consent by 


THE LAW OF PERSONAL PROPERTY 


341 


the obligor to an assignment has never had anything to do 
with assignability. That is merely an explanation ex post 
facto of which the lawyers of the early centuries of the 
common law never dreamed. If the personal relation of the 
parties requires the creditor’s consent to a transfer, it would 
seem to be just as necessary where an assignment is made 
with a power of attorney to sue in the name of the assignor 
for the benefit of the assignee. This was admittedly a device 
to accomplish an assignment in fact with a pretended adher¬ 
ence to the old rule. The personal relation is disrupted in 
the one case as in the other. It is impossible to think of the 
law of commercial paper as existing at the time of Littleton 
for instance, even though covenants not negotiable in their 
nature, such as a covenant of warranty, to convey land in fee, 
and grants of annuities, were enforceable by assignees when 
expressly made to the covenantee or grantee and his assigns. 
This doctrine of contemporaneous consent arising out of the 
use of the word ‘assigns,’ or out of words of negotiability, 
proves too much. Words of negotiability alone do not make 
an instrument negotiable. There can be no doubt that the 
Jaw of negotiable paper was a new thing imposed on technical 
reluctant courts by the demands of business. 

Assignment by power of attorney, the power being now 
implied from the mere fact of the assignment, is unquestion¬ 
ably a fairly successful attempt to get away from this ancient 
rule of non-assignability. All assignable rights of entry or 
of action above discussed, and all rights of action for injuries 
to property real or personal, including trover for the recovery 
of the full value of a converted chattel and replevin for its 
specific recovery, now survive the death of either party so as 
to be maintainable by or against his personal representatives. 
Purely personal actions in tort die with the person. 19 All 
such actions which survive may be assigned by attorney where 


*• See §98, post. 


342 


HISTORY OF ENGLISH AND AMERICAN LAW 


they cannot be transferred outright. The next step in the 
law’s development which logically should be taken is to permit 
this absolute assignment like negotiable paper. That they are 
property goes without saying: a man owning a million dollars 
worth of good non-negotiable bonds is just as truly a million¬ 
aire as the man with a million dollars in real property. The 
general principle of the law is that property may be trans¬ 
ferred. They pass to his personal representative as part of 
his personal estate, and there would seem to be no good reason 
why they should not pass to his assignee. The objection is 
that, if they could be conveyed like chattels, legal title passing, 
a purchaser for value without notice would take them free 
from such defenses as fraud, duress, mistake, and other equi¬ 
ties as well as counter-claims which the obligee might be able 
to set up against the original obligor. This objection applies 
only to choses in action sounding in contract. The answer 
is that the courts would probably refuse to apply the doctrine 
of purchaser for value without notice to transfers of non- 
negotiable rights of action in contract. The change would 
be limited to the dropping of the purely technical, now in 
effect fictional, doctrine of power of attorney to sue. In many 
states, the real party in interest must sue in his own name, 
and this result is practically secured. The change would at 
least lead to unity and coherence in legal thought, and would 
end another fiction. 

In the case of actions in trover to recover the value of 
chattels converted, or in replevin to recover the chattels, the 
right should be assignable exactly as the corresponding right 
to recover land is assignable, as a transfer of the ownership 
of the chattel expressed in the right to recover it or its value. 
The disseised owner or bailor has the absolute right to the 
chattel or its value, and he may sue in trover or replevin as 
he chooses. His assignee should have the same right by 
virtue of the ownership transferred to him and because he 
acquires his assignor’s rights of action as incident to his own- 


THE LAW OF PERSONAL PROPERTY 


343 


ership . 20 The assignee should be protected as a purchaser for 
value without notice as against any former owner having an 
equitable right to recover the chattel from the assignor or his 
disseisor, exactly as though the chattel had been in the pos¬ 
session of the owner and he had sold it in the regular way 
to the assignee. Therefore no objection can be made to this 
change in the law such as that discussed above with reference 


20 Professor Ames criticizes a 
dictum by Judge Story in Brig 
Sarah Ann, 2 Summ. 206, 211, to 
the effect that the owner may trans¬ 
fer title to the goods though they 
are in the possession of a disseisor, 
which dictum has been followed in 
several cases cited by Professor 
Ames, Sel. Essays, III, 588, note 2. 
He tests this dictum by supposing 
that, after the sale by the owner, 
the converter, in ignorance thereof, 
makes full compensation to the ven¬ 
dor and receives a release from 
him. The converter could hold the 
goods as against the purchaser. 
This is true because the purchaser’s 
ownership is the same as the ven¬ 
dor’s, his right of action in trover 
or replevin at his election; and, not 
having notified the disseisor of the 
assignment, he is estopped from 
denying the validity of the settle¬ 
ment made by the vendor. His 
action would be against the vendor. 
The same result would follow the 
conveyance of land adversely held 
under the statutes permitting such 
conveyance where the adverse pos¬ 
sessor settles with the former own¬ 
er in ignorance of his deed to the 
purchaser, and takes a deed of re¬ 
lease for value, assuming the first 
deed had not been recorded. Judge 
Story was wrong in saying that it 


is not a sale of the right of action. 
It is; but that right of action car¬ 
ries with it ownership of the chat¬ 
tels, on principle. Professor Ames 
then supposes a second sale to an¬ 
other party, and the second pur¬ 
chaser recovers the chattel or its 
value from the converter. He 
states that the second vendee can¬ 
not be compelled to surrender what 
he has recovered to the first vendee. 
But why not? The second vendee 
is simply the victim of the vendor’s 
fraud, and may hold him. The 
opposite conclusion is based on the 
premise that title to the chose in 
action did not pass on the first sale, 
which is the very point in issue. 

Cases of the fifteenth and six¬ 
teenth centuries cited by Professor 
Holdsworth, Hist. Choses in Action, 
in Harv. L. Rev., XXXIII, 997,1004, 
show a tendency toward the doc¬ 
trine that an owner out of posses¬ 
sion had an assignable property 
right carrying with it the chose in 
action. Professor Holdsworth says 
we might have expected the devel¬ 
opment of such a rule in favor of 
disseised owners of both real and 
personal property had not the de¬ 
velopment of the law against cham¬ 
perty and maintenance made it im¬ 
possible. lb., 1004, 1005, 1008. 


344 


HISTORY OF ENGLISH AND AMERICAN LAW 


to non-negotiable rights of action in contract. It is a change 
just as truly demanded by reason and enlightened legal thought 
as was the corresponding change giving to the disseised owner 
of land the right to convey his estate in the land. 

Other rights of actions in tort for injuries to property, 
principally trespass to land, waste, trespass de bonis asportatis, 
nuisance, and damage to property due to negligence, are all 
vested property rights to unliquidated sums of money as dam¬ 
ages. As such, there is no good reason why they cannot be 
assigned, without resort to the fiction of a power of attorney. 
It is difficult to see, however, how any injustice is done by 
the present arrangement of assignment by implied power of 
attorney, since the matter of protecting assignees as purchasers 
for value without notice could not arise. But a rule estab¬ 
lishing the general assignability of choses in action as property 
would clear away a great deal of useless and confusing learn¬ 
ing, and would bring rights of action into their proper place 
as personal property capable of transfer like other kinds of 
personal property. 


CHAPTER XV 


INHERITANCE AND WILLS 

§83. Inheritance in the Saxon Period .—The law of inher¬ 
itance of real property goes back to the earliest period of 
which we have any knowledge and beyond. Tacitus states 
that the Germans knew nothing of wills, but that, on the 
death of the owner, his kinsmen succeeded to his property: 
his children, brothers, uncles, in the order indicated. 1 There 
is no evidence that anything in the nature of family or clan 
ownership existed; property belonged to the individual, and, 
on his death, it was distributed among his kin according to 
law. 2 A law of this kind must have existed from a very early 
time, as an indiscriminate scramble for the property of a dead 
man without law would be inconsistent with even a primitive 
development of society. 

If there were descendants, the inheritance was theirs to the 
exclusion of collaterals. Among descendants, males took to 
the exclusion of females; but, if there were no males, female 
descendants inherited to the exclusion of collateral relatives.* 
Not long after the Conquest, the right of women to inherit 
where there were no male heirs of equal degree was estab¬ 
lished beyond a doubt. 4 


§84. Inheritance in the Feudal Period .—Primogeniture 
developed through gradual growth during the first hundred 


§83. 1 Germania, ch. 20. 

* Poll. & Mait., Hist. Eng. Law, 

II, 248-253. See Bigelow, Rise of 
the English Will, in Sel. Essays, 

III, 770, 774, for the basis of the 
power of the state in regulating the 
disposition of property of deceased 
persons. 


8 Hale, Com. Law, ch. 11; Bl., 
Comm., II, ch. 14. For instances 
of women inheriting land, see Kem¬ 
ble, Code Dipl., 220, (I, 280), 232, 
(I, 300). 

4 Poll. & Mait., II, 259-260. 


346 HISTORY OF ENGLISH AND AMERICAN LAW 


years of Norman rule. Domesday Book has many entries 
of land held prior to the Conquest by from two to ten thegns 
“in parage,” probably coheirs occupying the land together as 
cotenants. A germ of primogeniture may be found in the 
fact that the eldest alone was charged with the military and 
other services due from the land to the lord, and he alone did 
homage. They all had equal rights of enjoyment, but the 
eldest apparently represented the entire inheritance with refer¬ 
ence to the feudal relation to the lord. 1 In Normandy, though 
military tenements could not be divided, the law favored equal 
division of the land of the deceased owner among all his sons 
as far as possible, consistent with the indivisibility of military 
fiefs. The eldest son took his father’s military tenement; if 
there were two, each of the two eldest sons received one; 
other lands were divided equally, the eldest son being charged 
with the military tenement received by him toward his share 
of his father’s entire landed estate. In England, primogeni¬ 
ture came through the gradual strengthening of the eldest 
son’s position and the gradual disappearance of the other son’s 
rights in the land, the purpose being to prevent any weaken¬ 
ing of the feudal tie by a division of the land among several 
coheirs. 2 By Glanville’s time, it was the settled rule that the 
eldest son inherited lands held by military tenure to the exclu¬ 
sion of other heirs, and the only lands divisible among all 
the sons were those held by free socage tenure where the 
ancient custom had been so to divide the inheritance. 8 As 


§84. 1 Poll. & Mait., II, 261-262. 

2 Poll. & Mait., II, 262-260. 

8 “If he [the ancestor] has left 
more sons than one, then there is 
a distinction whether he was a 
knight, or a tenant of a knight’s 
fee, or a free socman. Because if 
he were a knight or a tenant by 
knight service, then according to 
the law of England the first-born 
son succeeds his father in the whole 


inheritance, so that none of his 
brothers can demand of right any 
share therein. If, however, he be 
a free socage tenant, then the in¬ 
heritance shall be divided between 
all the sons, however many they be, 
in equal shares, if that socageland 
has been subject by ancient custom 
to division, saving, however, to the 
eldest son the chief messuage in 
consideration of the dignity due to 


INHERITANCE AND WILES 


347 


the great majority of freeholders were military, and the 
ancient holdings of sokamen subject to this custom of division 
were comparatively few in Glanville’s time, and as new free¬ 
holds in socage tenure arising thereafter were, of course, free 
from this custom, primogeniture was gradually extended so 
as to cover all cases except in a few localities, as in Kent, 
where the ancient custom of division continued to survive. 

In the United States, lands have always descended to all 
the heirs, male and female, in equal shares, primogeniture 
never having been recognized here. The original patents of 
American lands made by the King expressly provided for 
socage tenure according to the custom of the county of Kent, 
which accounts for the American rule. 

If there were no sons surviving, an only daughter inherited 
exactly as an only son would have done; if more than one, 
all the daughters inherited in equal shares, the husband of 
the eldest doing homage to the lord for the entire inheritance. 4 
If no children survived the ancestor, his grandchildren inher¬ 
ited exactly as children would have done, subject to the same 
law of primogeniture and the preference of males over females. 
As between the son of a deceased elder son and a younger 
son of the ancestor, Glanville expressed a doubt, but gave as 
the correct principle in his opinion, the rule which was fully 


his seniority. . . . But if there is 
no ancient custom of division, then 
the first-born son according to the 
custom of some places will get the 
whole inheritance, while according 
to the custom of other places the 
youngest son is the heir.” Glanv., 
lib. VII, cap. 3, translation in Dig- 
by, 98. 

4 Glanv., ib., “And the younger 
daughters or their husbands are 
bound to render to the chief lord 
their service for their tenement by 
the hand of the eldest daughter or 


her husband. Yet the husbands of 
the younger daughters are not 
bound to render any homage or 
even any fealty to the husband of 
the eldest daughter in respect of 
the land during their lives, neither 
are their heirs in the first or second 
generation bound to do so; but the 
heirs of the third generation, the 
issue of the younger daughters, are 
by the laws of the realm bound to 
render homage and reasonable re¬ 
lief to the heir of the eldest daugh¬ 
ter.” Ib. 


348 HISTORY OF ENGLISH AND AMERICAN LAW 


established by Bracton’s time or shortly after, that the son 
of the deceased elder son inherits to the exclusion of the 
younger son, the issue representing the ancestor ad infinitum .* 

Glanville stated the law of inheritance in case there were 
no descendants, as follows: “On the failure of lineal descend¬ 
ants, the brother or brothers will succeed, or, if there are no 
brothers, then the sisters come in; if these are predeceased, 
their children are next in order, and after these the uncles and 
their children, and in the last place aunts and their children.” 6 

The father, mother, and other direct ascendants were rigidly 
excluded from the inheritance. This was established law in 
Glanville’s and Bracton’s time. 7 That the father could inherit 
from the son in case of failure of descendants before and 
shortly after the Conquest is indicated by a statement to that 
effect in Leges Henrici. 8 In Normandy, the ascendants were 
admitted to the inheritance for want of descendants of the 
deceased owner or issue of the ascendant involved. 9 Glanville 
and Bracton give no explanation of the reason for the change 
which excluded direct ascendants altogether. Their statement 
that an inheritance, like a heavy body, cannot fall upward, is 
merely frivolous. Blackstone gives an explanation involving 
one feudal origin, 10 but it breaks down on analysis by Pollock 
and Maitland, who give another feudal explanation suggest¬ 
ing that it grew out of the old feudal rule that the same 
person could not be at the same time lord and heir of the 
same tenement. The father could not inherit from the eldest 
son because the father’s line is excluded from inheriting what 
the son received from his mother; he could not inherit from 
his other sons what they received from their mother for the 
same reason, nor could he inherit what he had granted them 

“Glanv., ib .; Bracton, 64b. 8 Ch. 70, §20. 

•Glanv., lib. VII, cap. 4; Digby, 9 Ancienne contume, ch. 25 (ed. 
100. de Gruchy, 79). 

7 Glanv., lib. VII, cap. 1; Brae- 10 For Blackstone’s theory see 
ton, f. 62b. Comm., II, 208-212. 


INHERITANCE AND WILES 


349 


because he could not be lord and heir at the same time. This 
old principle was done away with by the Statute Quia Emp- 
tores, yet it may have been the starting point of the rule 
excluding ascendants, the courts having found it simpler to 
exclude ascendants altogether than to formulate rules distin¬ 
guishing between these and other possible cases of inheritance 
by the father. 11 Britton, writing just after Quia Emptores, 
states that the father may inherit from the son, 12 apparently 
because the statute did away with tenure between them in 
case of a grant by father to son, and because the case of a 
son acquiring land by his own exertions arose so infrequently 
that it received no consideration. No doubt, the rule exclud¬ 
ing ascendants had become too firmly established, though 
based on no valid reason, to be disturbed by this removal of 
a purely technical reason for it. 13 

The so-called “parantelic” scheme of distribution of real 
property among collaterals became fully established in the 
period of the Year Books. 14 There being no descendants, the 
law goes back to the father and mother and takes their other 
children, the brothers and sisters of the intestate, primogeni¬ 
ture and preference of males over females always applying 
in the different classes of collaterals. If there are no brothers 
or sisters or their descendants, the law goes back to the grand¬ 
father and grandmother on the father’s side; and their chil¬ 
dren, the uncles and aunts on the father’s side, inherit, except 
as to land acquired by the deceased from his mother which 
goes to the uncles and aunts on the mother’s side as descend¬ 
ants of the maternal grandfather and grandmother. If there 
are no uncles and aunts or their descendants, the law goes 
back to the great-grandfather and great-grandmother on the 
male side and the nearest degree living of their descendants 
will take, provided the deceased intestate was a purchaser of 

11 Poll. & Mait., II, 286, 287-293. 14 Poll. & Mait., II, 293; Bl., 

12 II, 319, 325. Comm., II, 207, 208; Holdsworth, 

13 Holdsworth, III, 144, 145 - HI, 145- et seq. 


HISTORY OF ENGLISH AND AMERICAN LAW 


the land or took by inheritance from his father’s side. If 
the ascendants and their descendants on the father’s side are 
exhausted, then the descendants of the nearest degree of 
ascendants on the mother’s side are taken, provided they are 
of the blood of the original purchaser. They will always be 
of his blood, of course, if the deceased intestate took title by 
purchase rather than by descent; but they would be excluded 
as not of the blood of the original purchaser, for instance, 
where the paternal grandfather was the original purchaser 
and the land descended through the father to the intestate. 
In that case, in the absence of descendants or of collaterals 
on the father’s side including brothers and sisters of the intes¬ 
tate and their descendants, the land escheated to the lord, as 
the uncles and aunts on the mother’s side or their descendants 
would not be of the blood of the grandfather, the original 
purchaser, with whom the inheritance started. 15 

Difference of opinion developed as to whether descendants 
of a less remote female ancestor on the father’s side should 
be postponed to the descendants of a more remote female 
ancestor also on the father’s side. A dictum in 1573 favored 
the former; and this view seems to have been followed for a 
time, the preference for male over female being disregarded 
in the case of remote relations. 18 However, Plowden and 
others took the other and more logical view, applying the 
rule of male preference here as in other cases. Thus the 
descendants of the brother or sister of the intestate purchaser’s 
great-grandmother were preferred to the descendants of the 
brother or sister of his grandmother. Their lives are united 
with the direct male line a generation earlier than that of the 


16 Glanville (lib. VII, cap. 4) as 
we have seen, gives no rule for in¬ 
heritance by collaterals more re¬ 
mote than uncles and aunts and 
their descendants. Bracton (ff. 67, 
68) discusses more remote relatives, 
but gives no certain rules. On the 


rules as stated in the text, see Y.B. 
49 Edward III, Pasch., pi. 5; Y.B. 
12 Edward IV, Mich., pi. 12, cited 
in Holdsworth, III, 149. 

16 Clere v. Brook, Plowd., 442, at 
451; Holdsworth, III, 150. 


INHERITANCE AND WILLS 


351 


brothers and sisters of the grandmother. 17 Blackstone took 
this view, 18 which has been confirmed by the modern English 
Statute. 19 

In every case, the inheritance passed to the heir or heirs of 
the person last seised. Thus if the heir of a descendant died 
before entering and becoming seised, the next heir of his 
ancestor, not his own heir, would inherit the property. 

Relatives of half-blood were rigidly excluded from the 
inheritance under the common law in its final form. We 
need not trace the development of this rule. 20 Its injustice 
is apparent and has been corrected, as we shall see, by modern 
statutes. 

§85. Statutory Changes in the Law of Inheritance .—The 
English Inheritance Act, 1833, made several radical changes 
in the common law scheme of inheritance. The rule above 
referred to, that the heir of the person last seised inherited 
the land, was changed by providing that descent shall always 
be traced to the last purchaser who acquired the land in any 
other way than by inheritance. Thus if A, owner in fee, dies 
intestate leaving a son, B, and a daughter, C, by a first wife, 
and a son, D, by a second wife, and thereafter B dies without 
becoming seised by entry, the inheritance would pass to D, 
the next heir of A, his son taking ahead of his daughter. 
If B had entered and died without issue, his sister, C, would 
inherit from him to the exclusion of his half-brother, D. 
Under the statute, it would make no difference whether B 
entered or not; the land goes on B’s death to the heir of the 
last purchaser. If the last purchaser has no heirs, another 
statute provides that the land will go to the heirs of the last 
owner whether he had entered or not. 1 

17 Clere v. Brook, Plowd., 451; 20 See Poll. & Mait., II, 303, et 

Holdsworth, III, 151. seq.; Holdsworth, III, 151-153, for 

18 Bl., Comm., 238, 239. the history of this rule. 

1® 3, 4 William IV, ch. 106, §8. §85. * 22, 23 Viet., ch. 35, §19. 


352 


HISTORY OF ENGLISH AND AMERICAN LAW 


The Inheritance Act abolishes the anomalous rule of the 
common law which excluded ancestors or ascendants. In the 
case of failure of lineal descendants, the property goes to the 
nearest lineal ancestor, the father’s line being preferred to the 
mother’s, males being preferred to females in the same class, 
and primogeniture applying as in other cases. 2 3 

The act provides for inheritance by relatives of the half- 
blood, but postpones them to relatives of the whole blood in 
the same degree, or to their descendants when the common 
ancestor is a male, and next after the common ancestor when 
such ancestor is a female. 

In the United States the law of inheritance is entirely 
governed by statutes of the different states. Primogeniture 
and the preference of males over females are not recognized. 
All children inherit in equal shares as tenants in common. 
If some of the children are living and some are dead, the 
issue of the latter take per stirpes. In many of the states, 
the common law rule that lineal descendants in infinitum rep¬ 
resent their deceased ancestor is modified so that, if all such 
descendants are in the same degree of relationship to the 
intestate, they inherit from him per capita in equal shares, as 
where all his children have died and his grandchildren are 
his heirs.® 

Where there are no lineal descendants, the father and 
mother take ahead of the brothers and sisters, in some states 
the inheritance passing equally to the father and mother or 
to the survivor. 4 In other states, the father takes first; and, 
if he be dead, the mother, brothers, and sisters take equally; 5 


2 3, 4 William IV, ch. 106, §§6, 7. 

3 See Williams, Real Prop. (17th 
ed.), Am. Notes, 273. 

4 See statutes in California, Iowa, 

Kansas, Kentucky, Massachusetts, 
Washington, and Wisconsin. In 
Kentucky, if the father is dead, 
one-half goes to the mother, the 


other half to the brothers and sis¬ 
ters. 

5 See statutes in Colorado, the 
Dakotas, Florida, Michigan, Minne¬ 
sota, Nebraska, New Hampshire, 
Oregon, Vermont, Virginia, and 
West Virginia. In Colorado and 
Minnesota, the mother takes ahead 


INHERITANCE AND WILLS 


353 


in a number of states, the brothers and sisters and their 
descendants are admitted ahead of the father and mother . 8 
The New York Statute gives the inheritance to the father, 
except land received by the intestate from his mother. The 
mother takes a life estate in this, remainder to the brothers 
and sisters, and the same disposition is made of all the intes¬ 
tate land if the father is dead. If the mother is dead, the 
father gets a life estate in land received by the intestate from 
his mother, remainder to the brothers and sisters, a fee if 
there are no brothers and sisters or their descendants . 7 

Where there are no descendants, parents, brothers and sis¬ 
ters, and their descendants, several states by statute give the 
property to the next of kin in equal degree . 8 In New York, 
the uncles and aunts take in equal shares unless the land came 
to the intestate from one of the parents, in which case the 
uncles and aunts on the other side are excluded; the grand¬ 
parents take in default of uncles and aunts and their de¬ 
scendants . 9 

Half-bloods inherit in most of the states exactly as do full- 
blood relatives, except that, in New York and several other 
states, if the intestate received the land from an ancestor by 
descent, gift, or devise, half-bloods not of the blood of such 
ancestor are excluded . 10 In several states, half-bloods take 


of the brothers and sisters. In the 
Dakotas, Michigan, Nebraska, and 
Oregon, the mother takes to the ex¬ 
clusion of the issue of deceased 
brothers and sisters. 

8 See statutes, New Jersey, Con¬ 
necticut, Ohio, and Mississippi. 

7 N. Y. Decedents Estates Law, 
§§84, 85. For references to these 
statutes and others in other states 
see Williams, Real Prop. (17th ed.), 
Am. Notes, 273, 274. 

8 See Statutes, Connecticut, New 
Hampshire, Illinois, and Mississippi. 


In Massachusetts, California, the 
Dakotas, Michigan, Wisconsin, Ore¬ 
gon, Nebraska, and Washington, 
this rule is modified by the pro¬ 
vision that where two or more rela¬ 
tives of the same degree claim un¬ 
der different ancestors, those claim¬ 
ing under the nearest ancestor are 
preferred. 

9 N. Y. Decedents Estates Law, 
§88. For other provisions in other 
states, see Williams, Real Prop. 
(17th ed.), Am. Notes, 275. 

10 See ib., 275, 276. 


24 


354 


HISTORY OF ENGLISH AND AMERICAN LAW 


only half as much as those of the whole blood. In Con¬ 
necticut, New Jersey, Ohio, and Pennsylvania, half-blood 
children are postponed to children of whole blood, and, except 
in Ohio, until after the parents. 11 

§86. Wills; The Saxon Period .—The beginning of the 
practice of disposing of property by will is bound up with 
the beginning of conveyancing of land inter vivos. In the 
primitive state of property ownership, there was probably very 
little occasion or desire to convey land or to dispose of it by 
will. It gave to its owner his social position and means of 
livelihood. It passed on his death to his kin. The indefinite 
restraints on alienation in favor of the heirs, which existed in 
the Saxon period down to Glanville’s time, must have arisen 
out of the custom of centuries in which the continued owner¬ 
ship and inheritance of land without interruption by aliena¬ 
tion or devise was the universal rule. No doubt with the 
development of wealth came the practice of purchasing land, 
and with the development of the church came the desire to 
devote part of the land to pious purposes on the owner’s 
death. 1 From the middle of the ninth century onward, we 
have documents generally called wills which are more like 
conveyances, in which the owner reserves bookland to himself 
for life and gives it on his death to others. The book or 
charter by which his estate was created expressly gave the 
power to convey during his life or on his death; and these 
so-called wills were strictly in accord with the power so given. 
They could hardly be called wills in the modern sense, because 
they probably could not be revoked by the owner during his 
life, nor were they ambulatory, viz., they did not include after- 
acquired property. There seems to have been no difficulty 
in creating at that time a future executory estate to arise on 
the death of the owner without an actual delivery of anything 

11 lb., 276. Gross, Mediaeval L. of Intestacy, 

§86. 1 Holdsworth, II, 79, 80-83; in Sel. Essays, III, 723. 


INHERITANCE AND WILLS 


355 


to the donee . 2 3 The technical law of future estates which 
made such a gift void because of putting seisin in abeyance, 
did not arise until the fourteenth century, as we have seen . 8 

Wills in the form of the last words, novissima verba, of 
a dying man, made to the confessor, by which he directed the 
disposition of his property, were no doubt common during 
the last three hundred years of the Saxon period or longer, 
and were given effect principally through the power and influ¬ 
ence of the church. As a practical matter, these wills were 
not revoked, since made just before death; and, for the same 
reason, no question of their ambulatory character could arise, 
as there would be no time for a subsequent acquiring of prop¬ 
erty by the testator. Such a will was really a death-bed 
distribution. A written will called a cwide (statement) was 
sometimes used during the ninth, tenth, and eleventh centuries, 
but these were apparently confined to the very great; they 
were a kind of novissima verba in advance, and were probably 
revocable and ambulatory . 4 5 

These wills related to bookland only, the lands of the great 
and powerful. We know little of wills of folkland, and the 
commonly accepted conclusion is that folkland could not be 
devised . 6 In the absence of anything like direct evidence, this 
question is largely a matter of mere conjecture. But the 
church would desire folkland as well as bookland to be devoted 
to pious uses; there would be the same desire to provide for 
distribution among his kin by the dying owner of folkland. 
Of course, the owner of bookland was relieved from the 
restrictions in favor of heirs which bound the owner of folk- 
land, because of the express power to convey or devise con- 


2 Poll. & Mait., II. 312-316; Big¬ 
elow, Rise of the English Will, in 
Sel. Essays, III, 770, 778-780. 

3 See §63, ante. 

4 Poll. & Mait., II, 316-319. 

5 Digby, Hist. Law Real Prop. 

(5th ed.), 16; Holdsworth, II, 82, 


(b). Caillemer, Executor, in Sel. 
Essays, III, 751, who says that “the 
right to dispose by a last will had 
been a privilege reserved to certain 
preferred persons, in derogation of 
the common law.” 


356 HISTORY OF ENGLISH AND AMERICAN LAW 


tained in the land book by which he secured title. But, within 
the limits of these restrictions, the more reasonable inference 
would seem to be that folkland, constituting the great mass 
of land held in private ownership, could be and was devised 
in the death-bed distribution made to the confessor in the last 
illness. The existence at a later time of the right to devise 
lands by ancient custom in Kent, is strong evidence of the 
existence of a power to devise such lands prior to the Con¬ 
quest. The division of the inheritance of land held by soke- 
men among all the sons was admittedly a survival of Saxon 
custom, as were several other customs in modification of the 
general law of Norman times. 

Wills of personal property were no doubt common. The 
last will was incident to the last confession, and probably 
there was something of the feeling, which became pronounced 
by the twelfth and thirteenth centuries, that dying intestate 
involved dying unconfessed.® There is no real evidence that 
the testator was restricted in definite ways in the disposition 
of his personal effects. We know that, in the twelfth and 
thirteenth centuries, a half of his chattels passed to his wife 
if there were no children, and one-third to his wife and one- 
third to his children if children also survived him, and these 
rights of his wife and children could not be modified by his 
will, except as local customs permitted a freer testamentary 
disposition . 6 7 The inference is entirely reasonable that similar 
restrictions existed in Saxon times, though probably not in 
a fixed or definite form, or protected by a special writ as in 
the twelfth and thirteenth centuries. 


§87. Wills; The Feudal Period .—It has been usual to say 
that wills of real property became void in England with the 


6 Holdsworth, II, 81; Gross, Me¬ 
diaeval L. of Intest., in Sel. Essays, 
HI, 723. 

7 Glanv., lib. VII, cap. 5; Brac- 
ton, ff. 60b, 61; Caillemer, Execu¬ 


tor, in Sel. Essays, III, 754; Holds¬ 
worth, III, 434. As to possible 
rights of the lord to the goods of 
intestates, see Gross, in Sel. Essays, 
III, 724-729. 


INHERITANCE AND WILLS 


357 


establishment of feudalism, because the diversion of the land 
from the heir to strangers by devise would tend to weaken 
the feudal tie . 1 Pollock and Maitland have established with 
sufficient certainty that wills of land continued to be valid 
after the Conquest as before until the latter part of the twelfth 
century; that the courts established the rule which made them 
void at about the time conveyances inter vivos were held to 
be free from all restrictions in favor of the heirs of the donor 
by way of compromise between the owner and his heir . 2 By 
the end of the twelfth century, the law had come to require 
an actual transfer of seisin and possession . 3 The old Saxon 
“will,” really a present gift of a future estate to arise on the 
death of the donor, was declared void because of the absence 
of livery of seisin, actual transfer of possession. The death¬ 
bed will was declared void in so far as it related to land, in 
order to protect the heir, not to protect the lord. Glanville 
gives the reason for the rule as follows: “As a general rule, 
every one in his life time may freely give away to whom¬ 
soever he pleases a reasonable part of his land. But hitherto 
this has not been allowed to anyone who is at death’s door, 
for there might be an immoderate dissipation of the inher¬ 
itance if this were permitted to one who in the agony of 
approaching death has, as is not unfrequently the case, lost 
both his memory and his reason; and thus it may be presumed 
that one who when sick unto death has begun to do, what he 
never did while in sound health, namely, to distribute his land, 
is moved to this rather by his agony than by a deliberate mind. 
However, such a gift will hold good if made with the heir’s 
consent and confirmed by him.” 4 

Nothing appears, in Glanville or in the early cases, support- 

187. 1 Bl., Comm., II, 373, 374; 3 See §40, ante. 

Digby (5th ed.), 377- 4 Bk. VII, c. 1; Poll. & Mait., II, 

2 See instances of post obit gifts 325, 326. 
of the 12th century, Poll. & Mait., 

II, 321-323. 


358 HISTORY OF ENGLISH AND AMERICAN LAW 

ing the argument that wills were not allowed because of the 
interest of the lord. We have seen that, at this time, it is 
very doubtful whether the lord could veto a subinfeudation 
by his tenant; there is nothing in Glanville or in the early 
authorities indicating such a right, which is supported only 
by the fact that the lord’s consent was generally secured . 5 
That fact indicates that the lord was at least asserting such 
a right, and no doubt his influence was being thrown strongly 
against the validity of wills of land, a potent contributing 
cause of the law which made them void. Public interest 
demanded more and more the free alienation of land, and the 
claims of the lord had to give way; but this was not the case 
with wills. The rights of the heir were swept aside in favor 
of free alienation, but the danger of his being deprived of 
the inheritance by devise was definitely removed. We may 
reasonably infer that the influence of the lords had something 
to do with this result. 

The net result of these contending forces was that, in the 
thirteenth century, the tenant gained the right to free alien¬ 
ation without interference by his heirs, and eventually, through 
the Statute Quia Emptores, without interference by his lord; 
but he lost all right to dispose of his land by will. 

For a short time in Henry Ill’s time, the courts hesitated 
in deciding whether a will of land could be made where the 
land had been given originally to the donee, his heirs, and 
devisees, the hesitation being due to the supposed power of 
the “form of the gift” expressly giving the power to devise. 
It was quickly decided that in that, as in other cases, the will 
of land was void . 8 

Wills of personal property developed after the Conquest 
so that by the thirteenth century they had become true wills 
in the modern sense, not mere death-bed distributions. They 
were ambulatory, viz., included property acquired after as 


5 § 37 . ant «- 


Poll. & Mait., II, 27. 


INHERITANCE AND WILLS 


359 


well as before the making of the will, and were revocable at 
any time before the testator’s death . 7 Executors were ap¬ 
pointed to administer them . 8 They might be noncupative (by 
parol) or in writing . 9 No particular form was required, nor 
did they have to be signed or sealed by the testator. Though 
written entirely by a stranger, without signature or seal of 
the testator, the will was valid if established as the last will 
of the deceased . 10 

Jurisdiction over wills was, by the thirteenth century, ex¬ 
clusively in the ecclesiastical courts. The church had always 
asserted the right to control and enforce gifts by will for pious 
purposes, and had given its support generally to the enforce¬ 
ment of testamentary dispositions. The connection between 
the last will and the last confession was very close. The 
judges of the King’s Court let jurisdiction over wills pass 
to the church courts without challenge, having settled that 
wills of land were void. A writ of Glanville’s time by which 
gifts made by will could be enforced in the King’s Court had 
disappeared by Henry Ill’s reign, leaving the entire field to 
the ecclesiastical courts . 11 


7 Poll. & Mait, II, 3345 Holds- 
worth, III, 324, citing 44 Ass., pi. 
36; Y.B. 34 Henry VI, Mich., pi. 
16 (p. 7 ); 36 Henry VI, 7, 8; 
Vynior’s case, 8 Coke 82a, (1610). 

8 Pollock and Maitland trace the 

origin of the executor to the early 

practice of an actual death-bed gift 

to a friend who would carry out 
the last wishes of the dying man, 
the church lending all its aid to 
bring this about. Later there would 
be a mere theoretical delivery of 
possession. When, in the twelfth 
and thirteenth centuries, death-bed 
dispositions had become testament¬ 
ary dispositions, the theoretical 
transfer of possession was dropped; 
but the friend appointed to carry 


out the gift, the executor, continued 
as the instrument by which the 
terms of the will should be en¬ 
forced. See Poll. & Mait., II, 333, 
334 - 

9 Holdsworth, III, 421, 422. Lin- 
wood, 174, says that a parol will 
should be proved by two witnesses. 
One need not be the parish priest, 
nor need there be a gift to pious 
purposes, nor need the witnesses be 
specially or formally called to be 
witnesses to the will. See Test. 
Bbor., I, 21; Y.B. 4 Henry VI, 
Mich., pi. 3. 

10 Lynwood, 174, sub. voc. Pro- 
batis; Test. Bbor., Ill, 295; Holds¬ 
worth, III, 421. 

11 Poll. & Mait., II, 330, 331. 


360 HISTORY OF ENGLISH AND AMERICAN LAW 


§88. Wills Under the Statutes. —We have seen how the 
practice of devising land by way of use in equity had grown 
up for over a hundred years prior to the Statute of Uses, and 
how extensively this device was employed. 1 The doing away 
with this by the Statute of Uses in 1535 was the immediate 
cause of the first Statute of Wills, enacted in 1540. 2 This 
statute gave to the owner in fee, power to devise all of his 
land held by socage tenure and two-thirds of his land held 
by military tenure. A little over a hundred years later, when 
all military tenures were converted into socage tenure by the 
Statute of Charles II, all lands became freely devisable by 
will. 3 The only formal requisite of wills under the first Stat¬ 
ute of Wills was that they be in writing. Unsigned writings 
in the handwriting of third persons were therefore good. 4 
The Statute of Frauds 5 required that a will of lands be signed 
by the testator, or by some other person in his presence, and 
that it be subscribed by three or four credible witnesses. The 
modern law of wills of both personal and real property is 
now contained in the English Wills Act, (7 Wm. IV and 
1 Viet., ch. 26). This statute requires that all wills be in 
writing, signed at the foot or end thereof by the testator, or 
by another in the testator’s presence and by his direction; 
the testator’s signature to be made or acknowledged by the 
testator in the presence of two or more witnesses present at 
the same time, who must sign the will as witnesses in the 
testator’s presence. The various statutes of wills in the differ¬ 
ent states vary their formal requirements in various ways, the 
details of which and their application are dealt with in the 
modern treatises on wills. 

§89. Intestate Succession to Chattels. —Reference has al¬ 
ready been made to the law which prevailed in the twelfth 

§88. 1 §52, ante. 4 Bl., Comm., II, 376. 

2 32 Henry VIII, ch. 1. 5 29 Charles II, ch. 3. 

3 Stat. 12 Charles II, ch. 14. 


INHERITANCE AND WILLS 


361 


and thirteenth centuries that a testator could not deprive his 
wife and children of their lawful portions of his personal 
property by his will, the wife taking a third and the children 
another third, the remaining third only being subject to his 
free disposition, the wife taking a half if there were no chil¬ 
dren. 1 If a man died intestate leaving a wife and children, 
they took the same portions, one-third by the wife, one-third 
by the children, the other third being administered by the 
ordinary for the good of the intestate’s soul, the wife taking 
one-half if there were no children. A great horror of intes¬ 
tacy had grown up, as the last will and the last confession 
had come to be so closely related that dying intestate was 
regarded as almost equivalent to dying unconfessed; therefore 
the disposable portion of his chattels were turned over to the 
ecclesiastical court to do with them what could be done in an 
apparently desperate case for the good of his soul. 2 When, 
in the fourteenth century, this restriction upon wills of chat¬ 
tels disappeared, except as it could be shown to exist as a 
special local custom,* this law of intestate succession, which 
probably had grown out of the restriction on wills in favor 
of wives and children, continued as before. 4 

Mr. Holdsworth says that apparently the kindred who in¬ 
herited the intestate’s goods had charge of their distribution 
in Saxon times. The charter of Henry I so providedMagna 
Carta, §27, provided for their distribution by his near rela¬ 
tives under the supervision of the church. The church saw 
to it that the disposable part was applied to pious use for the 
good of his soul. In this way, actual administration was 
gradually acquired by the ordinary; and, by a statute of 1285, 


§89. 1 See §86, note 7, ante. As 
to the claim of the lord to goods 
of an intestate by forfeiture, see 
Gross, Intestacy, in Sel. Essays, III, 

723. 

2 Poll. & Mait., II, 354-358; Holds¬ 
worth, III, 434 - 437 ; Caillemer, Ex¬ 


ecutor, in Sel. Essays, III, 768. 

3 Holdsworth, III, 436, 437, and 
notes. 

4 Poll. & Mait., II, 358; Holds¬ 
worth, III, 437. 

5 Charter Henry I, §7 (Sel. Ch., 
10) ; Holdsworth, I, 394. 


362 HISTORY OF ENGLISH AND AMERICAN LAW 


the ordinary was declared to be bound to pay the intestate’s 
debts out of his property, like executors appointed by will.* 
Actual distribution among the kin as well as administration 
of the part devoted to pious uses was made by the ordinary, 
or by his administrator acting for him, until a statute enacted 
in 1357 required the ordinary to delegate the administration 
to administrators appointed from among the “next and most 
lawful friends” of the intestate; the same statute provided 
for the action of debt by and against these “administrators.” 7 
Thus, from 1285, we have the ordinary and later the admin¬ 
istrator as the personal representative of the intestate, just 
as the executor was the personal representative of a deceased 
testator. 8 

The Statute 22 and 23 Chas. II, ch. 10, (1671), followed 
closely the common law distribution of personal property 
among the next of kin which had become established long 
before. After payment of debts, one-third of the balance 
went to the wife, the other two-thirds to the children in equal 
shares, the old application of one-third to pious purposes 
having long since disappeared. Children of deceased children 
took per stirpes. Advancements to any child were to be taken 
into account as part of his share in making the final equal 
distribution, except that the heir was not to be charged with 
land inherited by him as an advancement. If there was no 
wife surviving, the children took in equal shares, descendants 
of deceased children taking per stirpes. If there were no 
children or their descendants surviving, one-half went to the 


9 Stat. Westm. II, ch. 19. 

7 31 Edward III, St. 1, ch. 11; 
Poll. & Mait., II, 359. 

8 The ecclesiastical court of origi¬ 
nal jurisdiction was the Bishop’s 
Consistory Court for the diocese, 
presided over by the Chancellor or 
“Official” of the Bishop. All juris¬ 
diction of the court was in the 


Bishop, delegated by him to the 
“Official” or judge “ordinary” who 
came to have a life tenure, and who 
discharged all judicial duties of the 
court, except as the Bishop some¬ 
times withdrew cases to hear and 
dispose of himself. Holdsworth, I, 
369 . 


INHERITANCE AND WILLS 


363 


wife, the other half to the next of kin in equal degree and 
those who legally represented them, no representatives being 
allowed among collaterals after brothers’ and sisters’ children. 
If no wife or children or descendants of children survived, 
then the distribution was to the next of kin in equal degree, 
and their legal representatives, representatives being limited 
as above stated. The “gradual” scheme of succession by col¬ 
laterals, as distinguished from the “parantelic” scheme de¬ 
scribed in explaining inheritance of real property, 9 regulated 
the order of succession of collaterals and ascendants to the 
intestate’s personal property. 10 The modem Statutes of Dis¬ 
tribution in England and the different states have modified 
these provisions in various ways; but, in the main, they express 
the general scheme of distribution of personal property of 
intestates now prevailing. 


9 See §84, ante. 

10 According to the gradual 
scheme each step in the ascending 
or descending line counts as a de¬ 
gree, and all of the nearest equal 


degree took in equal shares. For 
illustrations of the difference be¬ 
tween the “gradual” and “paren- 
telic” schemes see Holdsworth, 145- 
147 . 








BOOK III 

ORIGIN AND DEVELOPMENT OF THE LAW OF 
CRIMES, TORTS, AND CONTRACTS 













BIBLIOGRAPHY —BOOK THREE 
Crimes. Chapter XVI 

Pollock & Maitland, History of English Law, II, 460-522. 

Holdsworth, History of English Law, III, 241-266; II, 
33 - 44 . 

Stephen, History Criminal Law. 

Hale, Pleas of the Crown . 

Torts. Chapter XVII 

Wigmore, Tortious Responsibility, in Harvard Law Re¬ 
view, VII, 315, 383, 442; Select Essays in Anglo-American 
Legal History, III, 474 - 537 * 

Pollock & Maitland, History of English Law, II, 468-476, 
524 - 555 . 

Holdsworth, History of English Law, II, 33-44; III, 299- 
3i7. 

Holmes, The Common Law, Lectures III and V. 

Beale, History of the Carrier’s Liability, in Harvard Law 
Review, XI, 158-168; Select Essays, III, 148-160. 

Veeder, Defamation, in Select Essays in Anglo-American 
Legal History, III, 446-473. 

Development of Contract. Chapter XVIII 

Pollock & Maitland, History of English Law, II, 182-236. 

Holdsworth, History of English Lazv, II, 72-75; III, 318- 
349 - 

Ames, History of Assumpsit, in Select Essays in Anglo- 
American Legal History, III, 259-303; Harvard Law Review, 
II, 1-18, 53-69, 377-380. 

Ames, Parol Contracts, in Harvard Lazv Review, VIII, 
252-264; Select Essays, III, 314-319. 


368 HISTORY OF ENGLISH AND AMERICAN LAW 

Holmes, Early English Equity, in Law Quarterly Review, 
I, 171; Select Essays, II, No. 41. 

Salmond, History of Contract, in Law Quarterly Review, 
III, 166; Select Essays, III, No. 61. 

Hening, History of the Beneficiary's Action in Assumpsit, 
in Select Essays, III, 339-367. 

Williston, Contracts for the Benefit of a Third Person, 
in Harvard Law Review, XV, 767-809. 

Holmes, History of Agency, in Select Essays, III, 368-414. 

Development of Commercial Law. Chapter XIX 

Scrutton, General Survey of the History of the Law Mer¬ 
chant, in Select Essays, III, 7-45. 

Burdick, The Law Merchant, in Select Essays, III, 34-50. 

Brodhurst, The Staple, in Select Essays, III, 16-33. 

Holdsworth, History of English Law, I, 300-337. 

Jenks, Early History of Negotiable Instruments, in Select 
Essays, III, 51-71. 

Cranch, Promissory Notes, in Select Essays, III, 72-97. 

Mitchell, Early Forms of Partnership, in Select Essays, 
III, 183-194. 

Williston, History of Business Corporations before 1800, 
in Select Essays, III, 195-235. 

Baldwin, Private Corporations in the Colonies and States, 
in Select Essays, III, 236-255. 

Moratwetz, Corporations; Taylor, Corporations. 

Vance, Early History of Insurance Law, in Select Essays, 
III, 98-116. 

Capacity of Persons. Chapter XX 

Pollock & Maitland, History of English Law, II, 397-410, 
434 - 445 * 

Holdsworth, History of English Law, III, 395-416. 

Williston, Contracts, I, Chapters XIII, IX, X. 


BIBLIOGRAPHY — BOOK THREE 369 

Development of Equity Jurisdiction. Chapter XXI 

Holdsworth, History of English Law, I, 194-263. 
Langdell, Account, in Harvard Law Review, II, 242-257. 
Ames, Parol Contracts, in Select Essays in Anglo-American 
Legal History, III, 304-319. 

Ames, Cases in Equity. 

Hazeltine, Gage of Land, in Select Essays, III, 646. 
Digby, History of the Law of Real Property, (5th ed.), 
284-288. 

Pollock & Maitland, History of English Law, II, 117-123. 

Development of Procedure. Chapter XXII 

Pollock & Maitland, History of English Law, II, 556-670. 
Holdsworth, History of English Law, I, 136-169; III, 468- 
495 - 

Thayer, Preliminary Treatise on Evidence, Chapters I 
and II. 

Stephens, History of Criminal Law, Vol. I. 

Pomeroy, Remedies and Remedial Rights. 

Baylies, Code Pleading and Practice, (2nd ed.). 

Maitland, Justice and Police. 

Burrill, Practice. 

Vansantvoord, Pleading. 


25 











CHAPTER XVI 


THE LAW OF CRIMES 

§90. Early History. —The law of torts and crimes in the 
Anglo-Saxon period has been outlined in the first chapter of 
this work. 1 There was no great change during the first 
century following the Norman Conquest. Domesday and 
Leges Henrici establish that the Saxon system of “emend- 
able” and “unemendable” crimes was continued, with out¬ 
lawry used as a punishment for some of the most serious 
crimes. Tfie wites, or money payments for crimes, as shown 
in Domesday , varied considerably in different localities. 2 Ac¬ 
cording to the Leges Henrici the unemendable crimes (viz., 
those which could not be satisfied by money payments) were 
open theft, arson, house-breaking, breach of the king’s or the 
church’s specially given peace when accompanied by homicide, 
and aggravated homicide, committed secretly, as by poison¬ 
ing. Ordinary wilful homicide could be paid for, including 
the wer paid to the kin, the manbot paid to the lord of the 
victim, and the zvite to the king. 8 Sometime in the twelfth 
century, this ancient system of zvite and hot completely dis¬ 
appeared, leaving in its place the beginnings of the common 
law of crimes. The change had been completed before the 
records of the King’s Court began. There is very little evi¬ 
dence of how the change was brought about. We may 
reasonably infer, however, that it was not as sudden as the 
historical record would seem to indicate. 4 The money pay¬ 
ments in homicide cases were so large that few were able to 
pay; and those who could not pay were outlawed or sold as 

§90. 1 See §8, ante. Henrici, the ancient system was in 

2 Poll. & Mait., II, 454, 455- full operation in the time of Henry 

8 Leges Henrici, 12; Poll. & Mait., I, yet before the end of Henry II's 
II, 456. reign it had been entirely displaced. 

* If we can rely on the Leges 


372 


HISTORY OF ENGLISH AND AMERICAN LAW 


slaves. 5 For the great majority, therefore, the system of 
writes, at least in the more serious cases, must have been an 
empty form, incapable of practical use; and a system of pun¬ 
ishment other than outlawry was needed to take its place. 
There can be little doubt, therefore, that the early common 
law of crimes which we find at the end of the twelfth century, 
grew up as a gradual matter to fill the place of the old system 
which had become unworkable in the great majority of cases. 
The new scheme included, ist, the more serious crimes, felo¬ 
nies, punishable by death or mutilation; 2nd, the lesser crimes 
punishable by discretionary fines instead of the fixed writes 
of the old system; 3rd, the use of outlawry as a means to 
procure the presence of the accused in court, rather than as 
a punishment. 6 

§91. Felonies. —The word felony came to be applied to 
the worst crimes, the word itself expressing all that was hate¬ 
ful and wicked. Felonies were punishable by death or muti¬ 
lation; the felon forfeited his lands, and his chattels were 
confiscated. If he evaded capture, he could be outlawed. 
He could be prosecuted by a so-called “appear’ in which the 
accuser was required to offer battle. 

Homicide, when not justifiable or excusable, was a felony 
punishable by death. The distinction of the old law between 
homicides in open affray and hidden or concealed homicides 
had disappeared in the thirteenth century. The word morth 
had been applied to these aggravated unemendable homicides, 
the Latin and French forms being murdrum, murdre, still 
used in Glanville’s time to distinguish hidden or concealed 
homicide from the ordinary kind; 1 but this use of the word 

5 The wer of the villein was £4; far beyond the means of the ordi- 
that of the knight or noble was £25. nary farmer. 

“A wite of £5 was of constant oc- 6 See Poll. & Mait., II, 457-460. 

currence.” Poll. & Mait., II, 458. §91. 1 Glanv., lib. XIV, ch. 3; 

These were very large sums accord- Poll. & Mait., II, 484. 
ing to the standards of that time, 


CRIMES 


373 


came to an end with the disappearance of the distinction which 
it expressed. The term lived on as the name given the fine 
exacted from the hundred in which the foreigner was slain 
and the slayer could not be found—a secret homicide. In 
1340, these fines were abolished by statute. 2 The word al¬ 
ways indicated the worst kind of homicide; and, in the latter 
part of the fourteenth century, after the statute above referred 
to had abolished the murdrum fine, the term “murder” came 
into general use as defining the form of homicide then regarded 
as the worst, viz., with malice aforethought. Over a century 
later, other kinds of homicide came to be called homicide by 
chance medley; and, by Coke’s time, the term “manslaughter” 
had come into use in its modern sense. 3 

The development of the law of excusable and justifiable 
homicide illustrates the exceeding narrow, unreasoning atti¬ 
tude of the courts which was characteristic of the early crim¬ 
inal law generally. Starting with the latter part of the twelfth 
and the early part of the thirteenth centuries, a period char¬ 
acterized by great strength and vigor in the development of 
the law of land, we find that the only cases where homicide 
was not a crime were cases of legal executions of criminals, 
and homicides necessarily committed in apprehending felons. 4 
When the homicide was committed in self-defense or by mis¬ 
adventure, a pardon by the king was necessary to relieve the 
accused from the penalty. The Statute of Gloucester pro¬ 
vided that the accused in such cases should plead to the indict¬ 
ment and “in case it be found by the country that he did it 
in his defense or by misfortune, then by the report of the 
justices to the king, the king shall take him to his grace if it 
pleases him.” 5 He, however, forfeited his chattels, though 
pardoned by the king. 6 Later, when the king’s pardon became 

2 14 Edward III, St. 1, ch. 4. 6 Holdsworth, III, 257; Poll. & 

8 Stephen, Hist. Crim. L-, III, 40, Mait., II, 481. 

43-45; Holdsworth, III, 259, note 4. 6 6 Edward I, ch. 9. 

4 Poll. & Mait., II, 476; Bracton, 
f. 128b. 


374 


HISTORY OF ENGLISH AND AMERICAN LAW 


a matter of course in these cases, the courts permitted juries 
to return verdicts of not guilty; and, in this way, homicide 
in self-defense and merely accidental homicide ceased to be 
crimes, provided the defense of misadventure or self-defense 
was established by the accused. 7 

Rape originally seems to have included abduction. 8 * By the 
thirteenth century, the term came to be confined to cases of 
forced sexual intercourse. If the woman prosecuted by appeal, 
it was treated as a felony punishable by mutilation, usually 
castration and blinding. The appeal of rape was often com¬ 
promised and quashed by the marriage of the parties. If 
prosecuted by the king by way of indictment instead of by 
appeal, it was punishable by imprisonment and fine only, until 
the second Statute of Westminster in 1285 provided for pun¬ 
ishment by death or mutilation whether prosecuted by the 
injured woman or by indictment of the king. Thereafter, rape 
remained a felony punishable by death or loss of member.® 

Arson is the one and only crime at common law arising out 
of injury to property. Malice or specific intent to burn the 
buildings was always necessary to establish the crime; merely 
negligent burning was a trespass only, these cases being among 
the earliest in which intent or state of mind was an element 
of the crime. 10 11 It was an unemendable crime in the Saxon 
time, and was punishable by death by burning as late as the 
beginning of the thirteenth century. Thereafter it took its 
place with the other felonies, and was punishable in the same 
way. It included the burning of barns and other outbuildings 


7 Stephen, Hist. Crim. L., Ill, 76, 

77. Mere accidental homicide while 

engaged in a lawful act was not 

punishable criminally, though tres¬ 
pass for damages would lie. Y.B. 

11 Henry VII, Pasch., pi. 14, per 
Fineux, C.J.; Y.B. 6 Edward IV, 
Mich., pi. 18. To establish self- 
defence the accused had clearly to 


establish that he could not escape, 
but had to use force to save him¬ 
self. 43 Ass., pi. 31; Y.B. 2 Henry 
IV, Mich., pi. 40. 
s Poll. & Mait., II, 488, 489. 

9 Poll. & Mait., II, 488-491; 
Holdsworth, III, 261. 

10 Poll. & Mait., II, 490, 491; 
Bracton, f. 146b. 


CRIMES 


375 


as well as the burning of houses. 11 The different extensions 
of the crime by statute and its division into different degrees 
must be looked for in the modem statutes in England and 
the different states. 

Burglary is defined by Coke as a breaking and entering into 
a mansion house at night with intent to kill or to commit 
some other felony within, whether such intent be carried out 
or not. The earliest authority for the requirement that the 
breaking and entry be at night is a case of Edward Vi’s reign. 
It seems that, in the thirteenth century and for some time 
thereafter, breaking and entering in the day-time constituted 
the crime. 12 Pollock and Maitland say there was no well 
established form of appeal of burglary. The term seems to 
have been used occasionally in appeals for other crimes. 13 It 
is probable that the crime was a felony whether committed by 
night or day in the earlier period, the restriction of the felony 
to cases occurring at night being possibly, as suggested by 
Mr. Holdsworth, the result of statutes enacted during the 
reigns of Henry VIII, Edward VI, Mary, and Elizabeth, 
which made certain cases of breaking into or robbing dwelling 
houses felonies whether committed by day or by night, other 
less serious breakings and entries becoming mere misde¬ 
meanors when committed in the day time. 14 As Pollock and 
Maitland say, it is evident that “we can as yet give no precise 
account of the genesis of burglary.” Its further elaboration 
by decisions and its extension by statutes is part of the 
modern criminal law. 

Robbery is defined by Hale as “the felonious and violent 
taking away of any money or goods from the person of 
another, putting him in fear.” 18 It was an aggravated form 

11 Coke, Inst., Ill, 66; Gloucester 14 Holdsworth, III, 293. For the 

Pleas, pi. 216; Poll. & Mait., II, 490, statutes referred to see Hale, P. C., 
note 7; Holdsworth, III, 294. I, 548. 

12 Britton, I, 42. 16 Hale, P. C., I, 532. 

18 Poll. & Mait., II, 491, notes 5, 

6, 7. 


376 HISTORY OF ENGUSH AND AMERICAN LAW 


of larceny; but, in the ancient law, larceny was regarded as 
more dishonorable, being a secret as distinguished from an 
open crime. 18 It was a felony from the time of Henry II, 
punishable by death or mutilation, death by hanging becoming 
the regular penalty by the time of Britton. 17 By Edward 
Ill’s reign, it was settled that the value of the thing taken 
was immaterial. 18 

Larceny and the proceedings for discovering and punishing 
the thief during the Saxon and early Norman periods have 
already been described. 19 The prosecution for larceny and 
the action in tort to recover the thing stolen were bound up 
together in the same proceeding until the appeal of larceny 
and indictment for larceny took the place of the old Saxon 
procedure, the actio furti described by Bracton. We have 
seen how thereafter the appeal became for the most part a 
purely criminal action, the owner being permitted to get back 
his property by special grace of the king as a reward for 
prompt action in starting the prosecution, and how the appeal 
in turn gave way to the indictment introduced by Henry II, 
as the means of prosecuting thieves. 20 When, by the Assize 
of Clarendon (1166), Henry II included larceny as one of 
the pleas of the crown subject to indictment, it became a 
felony. Under the old law, the manifest thief, caught in the 
act, was put to death after a summary trial before a local 
court, with little or no opportunity of making a defense; but 
other thieves escaped with the payment of a hot or wite. In 
the thirteenth century, grand larceny, viz., the stealing of 
chattels worth more than a shilling, became punishable by 
death whether the accused was caught in the act or not, the 
manifest thief being put to death after a summary trial, the 
other kind being hanged in more regular fashion after the 


18 Poll. & Mait., II, 492. 

17 Bracton, f. 146b; Britton, I, 

119. 

i«Y.B. 13, 14 Edward III, R. S., 


352, cited Holdsworth, III, 292, note 
10. 

19 See §77, ante. 

29 Id. 


CRIMES 


377 


usual trial, conviction, and sentence pronounced by the king’s 
judges. 21 

The wrongful taking from the possession of another which 
has always characterized larceny at common law, has been 
of the essence of larceny from the earliest times. Thus a 
wife could not steal from her husband, her possession being 
his. 22 The intent to steal, the animus furandi of Bracton, 
was not fully established as a necessary element of the crime 
until after prosecution by indictment had largely displaced the 
appeal. By the time of Edward IV, we find the court de¬ 
claring that a wrongful taking will be larceny or trespass 
depending on the intent of the wrongdoer. 23 

The conversion of goods with intent to steal by a bailee or 
other person in lawful possession of them was not larceny, 
but a mere trespass, because of the absence of a wrongful 
taking from the possession. This defect in the law was not 
remedied until the enactment of a statute in Victoria’s reign. 24 
So also, the wrongful taking of chattels by fraud with intent 
to steal was not larceny, because the owner willingly parted 
with possession. This was remedied by the statute creating 
the crime of obtaining goods by false pretenses. 26 

The courts distinguished between custody of a servant or 
licensee and possession, treating goods in the custody of the 
servant as in the possession of the master, except where the 
goods were delivered to the servant for the master by a third 
person, in which case the servant had possession and could 
not be held for larceny of the goods unless he stole them after 
they had reached a place of final deposit. 26 Obviously this 
distinction never had a reasonable basis; but it remained the 


21 Poll. & Mait., II, 494, 495 - 

22 Holdsworth, III, 287, citing 
Fitz., Abr., Covone, pi. 455. 

23 Y.B. 13 Edward IV, Pasch., pi. 
5; Poll. & Wright, Possession, 134, 
135 - 


2*20, 21 Viet., ch. 54, §17. 

2B 30 George II, ch. 24, §1; 7, 8 
George IV, ch. 29, §53. 

2# Y.B. 49 Henry VI, Mich., pi. 
9; 13 Edward IV, Pasch., pi. 5; 
Dyer, 5a; Coke, Inst., Ill, 105. 


378 HISTORY OF ENGLISH AND AMERICAN LAW 


law until embezzlement was made a crime by statute, correct¬ 
ing the situation by making the servant punishable in that case 
also.” 

The doctrine of breaking bulk by a bailee is another case 
in which the courts sought to modify the strict rule requiring 
a taking from the possession to constitute larceny. By the 
sophistry of treating the separate contents of a package as 
distinct from the package itself, they were able to hold that 
the contents were not in the possession of the bailee though 
the unbroken package was, and that he was guilty of larceny 
if he broke the package and stole the contents in whole or in 
part . 28 


§p2. Misdemeanors .—This term did not come into general 
use as including crimes not amounting to felony until some 
time in the sixteenth century . 1 In the thirteenth century, 
there was no classification of such offences, nor was there 
any definite scheme for their prosecution and punishment. 
A very extensive class of offences, many of which cannot be 
regarded as crimes in the modern sense, were punishable by 
amercement . 2 

All the courts imposed amercements. In the lord’s court, 
they were imposed freely after presentments for all kinds of 
petty assaults, disturbances, calling of bad names, and mis¬ 
conduct of a petty character of all kinds, as well as for viola¬ 
tions of manorial custom; and, through them, the lord exer¬ 
cised a very effective control over his villein tenants . 3 In all 
courts, amercements might be imposed upon the defeated party, 
upon the defendant if defeated because of the wrong of which 


27 Stat. 39 George III, ch. 85. 

28 Y.B. 13 Edward IV, Pasch., pi. 
5; Poll. & Wright, Possession, 134- 
137 - 

§92. 1 See Holdsworth, III, 263, 
note 1. 

2 Poll. & Mait., II, 510, 511. 


3 In the manorial courts this was 
done by means of presentments 
charging these minor offences which 
were disposed of summarily with¬ 
out further formal trial. See Poll. 
& Mait., II, 518, 519. 


CRIMES 


379 


he had been found guilty, upon the plaintiff if unsuccessful 
because of his having made an unjust claim. Either party 
was amerced for any default in appearance, and also for any 
mistake in pleading as a condition of rectifying it. These 
amercements were money payments exacted by way of penalty 
in amounts fixed by good and lawful men, the wrongdoer’s 
peers, who were sworn to “affear” or fix the amount in each 
case. The court could not fix the amount; it merely declared 
that the wrongdoer was in mercy (in misericordia ), and he 
thereupon gave security by gage or pledge that he would pay 
the amercement as fixed by his peers at the end of the session. 
The provision of Magna Carta which provided that amerce¬ 
ments should be so made was simply declaratory of the exist¬ 
ing rule which had grown up in Glanville’s time . 4 

The King’s Court in the thirteenth century had a broad 
general power to imprison an offender and to discharge him 
on paying a fine. The purpose was to imprison as a prelimi¬ 
nary step to exacting a fine, the fine being in effect a bargain 
by which the offender purchased his liberty. In this way, the 
court could, as a practical matter, fix the amount of the fine 
without going through the process of amercement above de¬ 
scribed. This method of punishment was used in the King’s 


4 As to the history and nature of 
amercements see Poll. & Mait., II, 
5H-5I3- 

“In Madox’s History of the Ex¬ 
chequer there are collected a vast 
mass of instances of fines and 
amercements, extracted from the 
rolls of Henry II, Richard I, John, 
Henry III, and Edward I, from 
which it appears that fines were 
paid on every imaginable occasion, 
especially on all grants of fran¬ 
chises, at every step of every sort 
of legal proceeding, and for every 
description of official default, or 
irregularity, or impropriety. . . . 


It seems as if money had to be 
paid to the king for nearly every 
step in every matter of public busi¬ 
ness, and it is impossible practically 
to draw the line between what was 
paid by way of fees and what was 
paid by way of penal fine. ... It 
(this subject of amercements) is 
important with a view to the pres¬ 
ent subject, because it shows the ex¬ 
treme vagueness of that part of the 
criminal law which related to mis¬ 
demeanors at the beginning of the 
history of the system.” Stephen, 
Hist. Crint. L., II, 198, 199 - 


380 HISTORY OF ENGUSH AND AMERICAN LAW 


Court alone, in cases involving the more serious breaches of 
the king’s peace and misuse or violation of judicial remedies 
not amounting to felonies . 6 

Very little was done to punish petty offences by way of 
presentment before the king’s judges, though, as we have seen 
above, presentments for all sorts of petty offences were com¬ 
mon in the manorial courts. Punishment for such offences 
in the King’s Court was principally by way of amercement 
or imprisonment and fine as above referred to, in connection 
with civil cases, most frequently trespass, after trespass had 
become a writ of course in the latter half of the thirteenth 
century. The development of the criminal law of misde¬ 
meanor is to be found chiefly in the development of the writ 
of trespass as a quasi-criminal action. 

Trespass, which, as we have seen, started in the first half 
of the thirteenth century, becoming a writ of course about the 
middle of that century at about the time the indictment was 
taking the place of the appeal of felony, came into general 
use as an action in tort for injuries of violence committed 
against person or property . 8 

It was a civil action in that it was started and prosecuted 
by the person injured and resulted in the recovery of damages. 
It was also penal, developing from, and to a considerable 
degree taking the place of, the appeal of larceny, the writ 
being in much the same form, with words of felony omitted, 
and the expression “by force and arms against the king’s 
peace” being substituted, aiming at the outlawry of the defend- 


6 Poll. & Mait., II, 514-517. Be¬ 
sides amercements inflicted by all 
courts in civil actions, Pollock and 
Maitland point out that the wrong¬ 
doer could be imprisoned by the 
King’s Court, for instance “if he 
had broken the king’s peace with 
force and arms, if he had infringed 
a final concord made in the king’s' 


court, if he had falsely disputed 
his own deed, if he had relied on 
a forged charter, if he had intruded 
on the king or disobeyed a writ of 
prohibition,” citing Brae ton’s Note 
Book, pi. 187, 256, 286, 351, 384, 496, 
498, 566, 583, 1105. Y.B. 20-21 Ed¬ 
ward I, pi. 41. 

6 See §78, ante. 


CRIMES 381 

ant, who on conviction was imprisoned until he purchased his 
freedom by a fine . 7 

During the latter half of the thirteenth century, prosecution 
by indictment had very largely displaced the appeal in all 
felonies, the King’s Court having assumed jurisdiction, in 
connection with accusing juries, as it became more generally 
accepted that the business of repressing crime was a matter 
of public concern rather than of private vengeance. Never¬ 
theless, appeals continued, particularly the appeal of larceny 
by which, as we have seen, a dubious means of recovering the 
stolen goods was given the prosecutor . 8 But, by the middle 
of the thirteenth century, appeals had lost their character as 
private actions by which appellors could recover their prop¬ 
erty; and, for this and other reasons, they rapidly fell into 
disuse. Nevertheless, the process of presentment and indict¬ 
ment through accusing juries could not all at once fully take 
the place of personal action on the part of the injured person 
moved by the desire for vengeance and recompense. The new 
writ of trespass was ready at hand, by which he could gratify 
both desires, recover damages for the wrong done him by 
trespass to either his person or his property, and exact punish¬ 
ment through the imprisonment and fine or amercement to 
which the defendant would be subjected by the court. There 
is no doubt that the great mass of crimes which became the 
misdemeanors of later law were punished in this way through 
the writ of trespass. Gradually the process of presentment 
took over these offences; others were made crimes by statute; 
until finally the action of trespass lost its criminal character, 
and misdemeanors came under the sole jurisdiction of the 
criminal law, subject to prosecution by the state alone, entirely 
divorced from the law of torts. 

.Any attempt to trace the history of the exceedingly numer¬ 
ous misdemeanors of the modern law is obviously outside the 


* Poll. & Mait., II, 16s. 


8 See §78, ante. 


382 HISTORY OF ENGLISH AND AMERICAN LAW 


scope of this work. They are now part of the penal code in 
England and the different states, and their later history, after 
they had emerged as part of the law of crimes distinct from 
torts, would hardly be worth the effort. 


§93. Principles of Liability for Crimes .—The early Ger¬ 
manic and Anglo-Saxon law took no account of criminal 
intent. The man whose act caused the death or injury of 
another through mere accident without negligence had to 
answer for the result as though it were intended . 1 Thus, if 
the owner of a horse loaned him to another who was injured 
while riding the horse, the owner was liable. If he left his 
arms about so that they were knocked over, causing injury 
to a third person, the owner was required to answer for the 
injury . 2 If a man, requested by another to accompany him, 
was attacked and injured while so doing, the man who made 
the request was held responsible for his injuries . 3 There was 
no possible question of negligence in such cases; liability was 
based on the act which, however remotely, was the cause of 
the injuries. Nothing resembling the modern law of proxi¬ 
mate cause then existed. 

The primitive nature of the early law of crimes and torts 
is well illustrated in the moral liability of the thing, weapon, 
beam, boat, cart, beast, or other object through which the 
injury was inflicted. This object had to be surrendered as 
guilty, or the owner was held liable . 4 The same primitive 


§93. 1 See Wigmore, T ortious 

Responsibility, in Harv. L. Rev., 
VII, 319, 321; Sel. Essays, III, 474, 
485, citing Beowulf, v. 2436, (ed. 
Heyne): “The story of King 
Hre5el, whose second son, HaeScyn, 
unfortunately killed his brother by 
an arrow which went wide of the 
mark. The death of the slayer was 
required in expiation; and the king 


so mourned at the loss of his two 
sons that he took his own life.” See 
also Leg. Hen. 90, §11. 

2 Poll. & Mait, II, 469; Holds- 
worth, II, 42; Leg. Hen., 87, § 1, 2; 
90 , §n. 

3 Ibid., citing Leg. Hen., 88, §9. 

4 Poll. & Mait., II, 470, 471; 
Holdsworth, II, 37, 42; Ine, §§42, 
74; Alf., §24. “Our English law of 


CRIMES 


383 

idea of culpability flowing from the mere act without regard 
to moral wrong, is further shown by the refusal of the ancient 
law to allow self-defense as a justification . 5 

But the laws of Henry I show clearly enough that the 
element of moral culpability was beginning to have weight 
in criminal law. According to these laws, the infant and 
lunatic could not be held liable personally for their misdeeds. 
Self-defense and mere accident relieved the wrongdoer from 
paying the wife to the state, though the wer was due to the 
kindred of the man slain . 6 By Bracton’s time, considerable 
progress had been made toward making criminal intent a 
necessary element of crimes generally, no doubt largely due 
to the influence of the church and the canon law as adminis¬ 
tered in the trials of clergy charged with crimes in the church 
courts . 7 Bracton regarded intent to injure as essential to 
murder, and held, therefore, that the insane and children of 
tender years could not be held liable for crime . 8 We have 
already seen how, in the thirteenth century, a person who had 
taken life by mere accident or in self-defense was regarded 
as technically guilty, and a pardon from the king was necessary 
to free him from punishment, a pardon which later became 
a matter of course, finally but slowly emerging into the de¬ 
fenses of self-defense and misadventure . 0 Criminal intent as 
the moral basis of crime thus very slowly overcame the ancient 


deodands gives us a glimpse into a 
far off past. In 1846, we still in 
theory maintained the rule that any 
animate or inanimate thing which 
caused the death of a human being 
should be handed over to the king 
and devoted by his almoner to pious 
uses ‘for the appeasing/ says Coke, 
‘of God’s wrath/ ” Poll. & Mait., 
II, 471. 

5 Leg. Hen., 80, §7; 87, §6. 

«Poll. & Mait., II, 469; Holds- 


worth, II, 44; Leg. Hen., 59, §20; 
78, §§6, 7; 90, §11. 

7 Poll. & Mait., II, 475. “Bracton 
has borrowed from Azo many gen¬ 
eralities about crimes and punish¬ 
ments; he has himself looked at 
Code and Digest, (citing Bracton, 
f. 104b, 105) ; he has transplanted 
a long discourse on homicide from 
the works of Bernard of Pavia, a 
distinguished canonist.” 

8 Bracton, f. 136b. 

9 See §91, ante. 


384 HISTORY OF ENGLISH AND AMERICAN LAW 


primitive idea of absolute liability for the act irrespective of 
moral wrong. 

By the time of Edward I, it was settled that a child under 
seven could not be guilty of a felony; 10 and later the law on 
this point was made complete by the holding that, between 
seven and fourteen, there was a presumption that the child 
was incapable of criminal responsibility, while above fourteen 
he was subject to full liability. 11 Insanity was recognized as 
a complete defense for the same reason, the forfeiture of the 
lunatic’s goods disappearing probably about the time of Ed¬ 
ward III, as Mr. Holdsworth points out. 12 During the four¬ 
teenth and fifteenth centuries, criminal intent came to be recog¬ 
nized as the important distinguishing test between felonies 
and civil wrongs. Thus in the Year Book 6 Edward IV, 
Mich., pi. 18, Fairfax said: “Felony is of malice prepense, 
and when an act is done against a man’s will there is no 
felonious intent.” So in 21 Henry VII, Trin., pi. 5, Rede 
J. said: “for instance, if a man is shooting at the butts, and 
kills another, it is not felony and it shall be accounted as if 
he had no intent to kill him; and so in the case of a tiler on 
a house who with a stone kills a man unwittingly, it is not 
felony.” 18 By the time of Henry VIII, criminal intent had 
come to be recognized as the basis of criminality in wrongful 
acts, though of course exceptional cases have always existed 
of acts punishable criminally for one reason or another irre¬ 
spective of guilty knowledge or intent. 14 

10 Y.B., 30, 31 Edward I, 510. 12 Holdsworth, III, 296, note 9. 

11 Plowd., 19 N. F.; Hale, P. C., 13 Holdsworth, III, 297, 298. 

I, 24-29. 14 For outline of the development 

of criminal procedure, see §127, 
post. 


CHAPTER XVII 


TORTS 

§ 94 ' History of Liability for Torts .—Criminal and civil 
liability for torts and crimes were bound up together during 
the Saxon and early Norman periods. Nevertheless the wites, 
or money payments to the state, as distinguished from the 
wer or hot, payments to the persons injured or to the kindred 
of a person killed, show some appreciation of distinction be¬ 
tween crimes and torts; but there was nothing like a distinct 
law of torts as distinguished from criminal law. 

The blood feud undoubtedly preceded this system of fixed 
money compensations. Whether it was ever lawful is a dis¬ 
puted point. That it existed and was commonly practised, 
and that the law sought to regulate and control it, there can 
be no doubt. 1 We have seen that the Saxons undoubtedly 
brought over with them the system of money compensations, 
and that the struggle was to get men to accept these payments 
and to forego the feud. 2 At first, these payments might be 
accepted or not; if they were not accepted, the feud would be 
followed; but, at an early date in the Saxon period, they had 
become obligatory generally. 8 If the wer was not paid in the 
earlier period, the feud was resorted to; after the feud had 
been definitely put outside of the law, the wrongdoer was 
made an outlaw if he failed to make the payment, losing 
everything, probably his life, as he could be hunted down and 
killed by anyone with impunity. 4 

This mixture of blood feud, iver and wite, outlawry and 
punishment by death or mutilation for unemendable crimes, 
gives us nothing resembling a separate law of torts as distin- 

§94. 1 Poll. & Mait., II, 448; 2 §8, ante. 

Holdsworth, II, 34. See Laws of 3 Holdsworth, II, 35. 

Alfred, §42. * Id., 36. 


26 


386 HISTORY OF ENGLISH AND AMERICAN LAW 


guished from crimes; and therefore the principles of liability 
for crimes as outlined in the preceding section applied to torts 
as well during the Saxon and early Norman times. The 
wrongdoer was required to pay the wer for the injury to the 
party injured, though it was the result of mere accident with¬ 
out negligence, or done in self-defense. 5 Later, when self- 
defense and mere accident relieved the wrongdoer from pay¬ 
ing the wife to the state, and the infant of tender years and 
lunatic were held to be free from criminal responsibility, there 
was no change in their liability to pay the wer to the party 
injured. The same ideas of liability for an act which was 
only a remote cause of the injury, applied to the tort as well 
as the crime. 6 

During the fourteenth and fifteenth centuries, even to the 
time of Bacon, liability for injuries from accident without 
negligence continued as before. Thus, in a case decided in 
the reign of Edward VI, Brian, J., said that if a man in build¬ 
ing a house let a timber fall on his neighbor’s house, he would 
be liable, though it were a mere accident; and, for the same 
reason, if a man should raise his stick to repel an assault and 
should chance to hit a man standing behind him, he would 
be liable therefor. 7 Infants and lunatics remained liable for 
their torts, though free from criminal responsibility. 8 Bacon 
said, in summary of this law: “In capital cases, in favorem 
vitae , the law will not punish in so high a degree, except the 
malice of the will and intention do appear; but in civil tres¬ 
passes and injuries that are of an inferior nature, the law 
doth rather consider the damage of the party wronged, than 
the malice of him that was the wrongdoer . . . so if a man 
be killed by misadventure, as by an arrow at butts, this hath 
a pardon of course, but if man be hurt or maimed only, an 
action of trespass lieth, though it be done against the party’s 
mind and will, and he shall be punished in the same as deeply 


8 §93, ante. 
6 §93, ante. 


T Y.B. 6 Edward IV, Mich., pi. 18. 
8 Y.B. 2, 3 Edward II, 112. 


TORTS 


387 

as if he had done it of malice. . . . So if an infant within 
years of discretion, or a madman, kill another, he shall not 
be impeached thereof; but if he put out a man’s eye, or do 
him like corporeal hurt, he shall be punished in trespass.” 9 

Acts in self-defense, however, ceased to give rise to civil 
liability during the period of the Year Books. Thus the right 
to strike in self-defense is laid down in the reign of Henry IV, 
and thereafter self-defense has always been a good plea. 1 ® 
The ancient Saxon law, which fixed liability on a man for 
an act very remote from the injury, had been gradually over¬ 
come during the twelfth and thirteenth centuries. That the 
wrongful act must be the proximate cause of the injury was 
established law during the period of the Year Books. This 
is shown clearly enough by cases in which the act of the plain¬ 
tiff is a cause of the injury, as where the trespass by the 
defendant’s cattle was due to the plaintiff’s failure to build a 
fence. In such cases, he could not recover, though the de¬ 
fendant’s act was closely connected with the damage done. 11 
As Mr. Holdsworth points out, the principle involved here 
is the one which underlies the modern doctrine of contributory 
negligence, viz., the plaintiff cannot recover when his own act 
is a proximate cause of the injury or damage. 12 

The strict rule of the old law as expressed by Bacon in the 
above quotation, that a man was liable for any personal act 
causing harm, though a mere accident without intent to injure 
or negligence or moral wrong of any kind, persisted for a 


9 Quoted in Holdsworth, III, 300, 
301; Bacon, Maxims, VII, (1630); 
Wigmore, Tortious Responsibility, 
in Sel. Essays, III, 309. 

10 Y.B. 2 Hen. IV, Mich., pi. 40 

(1400). In 1294, 21, 22 Edward I, 
586 (Rolls Ed.), and in 1319, 12 
Edward II, 38 (Rolls Ed.), self- 
defence was not allowed as a de¬ 

fence to the tort. 


11 Holdsworth, III, 301, 302; Y.B. 

10 Edward IV, Pasch., pi. 19; Y.B. 

11 Edward IV, Trin., pi. 6, in which 
case the defence to trespass by cat¬ 
tle was that the plaintiff’s close was 
not properly fenced because of 
which defendant’s cattle driven 
along the highway entered thereon. 

12 Holdsworth, III, 302. 


388 HISTORY OF ENGLISH AND AMERICAN LAW 


long time in the law, gradually modified by a series of prece¬ 
dents starting around 1500, which permitted a defendant in 
such case to avoid liability by showing that his act had been 
without blame because it had been the result of inevitable 
accident, or a result which could not be reasonably foreseen 
or guarded against. 13 A certain indefiniteness in the cases, 
and language in some of them tending to sustain the strict 
ancient rule, 14 created doubt as to the law, which was set at 
rest in England by cases decided in 1875 and 1891, 15 finally 
establishing the doctrine that voluntary acts resulting in harm 
do not necessarily give rise to liability if the harm is the 
result of mere accident or misfortune without negligence or 
wilful wrong, a result which had long before been reached by 
the early American cases. 16 

The strict rule of the early law has never been changed in 
cases of personal acts of trespass resulting in damage to 
property, real or personal. Liability arises irrespective of 
intent to do wrong. 17 Judge Holmes argues that the wrong- 


13 Wigmore, Tortious Responsi¬ 
bility, in Sel. Essays, III, 505-507. 
See list of precedents cited by Pro¬ 
fessor Wigmore, note 5, pp. 505- 
506, showing chronologically the 
gradual development of this doc¬ 
trine. 

14 See Wigmore, Tortious Re¬ 
sponsibility, in Sel. Essays, III, 507, 
note 3. See analysis of leading 
cases in Holmes, Com. Law, 103- 
105. 

15 Holmes v. Mather, L. R. 10 
Exch. 261; Stanley v. Powell, 12 
B. 86. 

16 Vincent v. Stonehouse, 7 Vt. 
62, (1835) ; Harvey v. Dunlap, Hill 
& Den. Suppl. 193, (1843); Dyfert 
v. Bradley, 8 Wend. 470 (1832); 
Center v. Finney, 17 Barb. (N. Y.) 


94, (1852). See Holmes, Com. Law, 
Lee. Ill, for a thorough analysis 
of the relation of trespass and neg¬ 
ligence with a discussion of the 
leading English and American cases. 

17 Wigmore, Tortious Responsi¬ 
bility, in Sel. Essays, III, 508. Some 
of the earlier decisions indicated a 
tendency to mitigate the rule in 
these cases also. Rede, C. J., 21 
Henry VII (1506), “where the ex¬ 
ecutors take the goods of a stranger 
with those of the testator, they are 
excusable for the taking in tres¬ 
pass.” See also 22 Edward IV, 8, 
24 (1483). By 1681, the courts re¬ 
verted to the old rule of strict lia¬ 
bility. Basely v. Clarkson, 3 Lev. 
37, holding that the defendant was 
liable for mowing down some of 


TORTS 


389 


doer in those cases intends to do the act which is wrongful; 
the absence of intent to do wrong arises from his mistake as 
to the ownership of the property involved. Where he con¬ 
sumes or sells the goods of another, the justice of holding 
him for their value in conversion or implied assumpsit is 
obvious. He has converted another’s goods to his own use, 
and his innocence of wrongful intent is immaterial. 18 But 
in case of simple trespass to goods without conversion, the 
situation is not so clear. The old rule of strict liability is 
adhered to for reasons of expediency and public policy. 19 As 
a matter of right and wrong, there is little difference between 
harm to the person and harm to the goods or land of another 
when no absence of care or lack of reasonable foresight is 
shown. There is as complete absence of wrongfulness in the 
one case as in the other. Nevertheless there is a practical 
difference between cases of mere accidental injury from acts 
in no sense wrongful, and damage from wilful acts consti¬ 
tuting interferences with property which, as the event proves, 
belongs to another. 

In a comparatively recent New York case, we find an inter¬ 
esting departure from the modern rule applying to a purely 
personal injury. 20 The defendant was held liable for the death 
of a person who, while on a highway, was hit by a piece of 
wood thrown by a blast set off by the defendant on his own 
land lawfully and without negligence. The court argued from 
earlier New York cases of blasting in which rocks were thrown 
against adjoining buildings, the blasting having been lawful 
and without negligence, and in which cases the defendants 
were held liable in trespass. The court said: “As the safety 
of the person is more sacred than the safety of property, the 
cases cited should govern our decision unless they are no 

the plaintiff’s grass which he did 19 lb.; Wigmore, Tortious Re- 
by mistake in mowing his own. sponsibility, in Sel. Essays, III, 508. 
Holmes, Corn. Law, 99. 20 Sullivan v. Dunham, 161 N. Y. 

is Holmes, Com. Law, 97-99- 290. 


390 


HISTORY OF ENGLISH AND AMERICAN LAW 


longer the law.” The defendant was held liable for “trespass 
to the person” of the deceased. The problem above referred 
to is presented in a clear-cut way in these cases. 

Absolute liability for fires spreading from an owner’s land 
irrespective of negligence or other wrong, continued until a 
statute in Ann’s reign changed the law by abolishing liability 
for fires in houses arising by mere accident without negli¬ 
gence. 21 

Trespasses by cattle to land or harm done by cattle to 
another’s personal property have continued down to the pres¬ 
ent as cases in which the old liability has been upheld irre¬ 
spective of negligence or other wrong. 22 These and other 
similar cases were brought together under a single rational 
principle by Judge Blackburn in 1866. He said: “There does 
not appear to be any difference in principle between the extent 
of the duty cast on him who brings cattle on his land to keep 
them in and the extent of the duty imposed on him who 
brings on his land water, filth, or stenches, or any other thing 
which will, if it escape, naturally do damage, to prevent their 
escaping and injuring his neighbor . . . the duty is the 
same, and is to keep them in at his peril.” 28 This absolute 
responsibility is, of course, founded on expediency and public 
policy. That there is no liability for trespasses on land of 


21 10 Anne, ch. 14, §1, extended 
by 14 Geo. Ill, ch. 78, §1. For 
cases showing the old rule, see 
Wigmore, Tortious Responsibility, 
in Sel. Bssays, III, 511, 512. 

22 Y.B. 20 Edward IV, pi. 10 
(1841); Wigmore, Tortious Re¬ 
sponsibility, in Sel. Bssays, III, 514. 
An important modification in the 
early law, continued still, is that the 
owner is not liable for cattle who 
trespass while being driven along 
the highway, provided due care is 


used by the driver. Y.B. 10 Ed¬ 
ward IV, 7, pi. 19 (1471); Y.B. 15 
Henry VII, 17, pi. 13 (1502) ; Good¬ 
win v. Cheevely, 28 L. J. Exch. 298. 
Public policy and expediency, which 
is the basis of the general rule, is 
no doubt the reason for this modi¬ 
fication. 

23 Fletcher v. Rylands, L. R. 1 
Exch., at 282, as cited and quoted 
by Professor Wigmore, Tortious 
Responsibility, in Sel. Bssays, III, 
518. 


TORTS 


391 


dogs in the absence of wilful causation by the owner, is prob¬ 
ably due to the feeling that such trespasses do little harm and 
therefore public policy requires no such rule. 

On the other hand, personal injury from bites of dogs has 
always given rise to liability only when the owner knew or 
should have known that the dog was dangerous. 24 If the 
animals kept are naturally dangerous, such as dangerous wild 
animals, we have one of the cases of absolute liability in which 
the owner acts at his peril, 26 referred to by Judge Blackburn 
in Fletcher v. Rylands. 

Common Carriers and Innkeepers are liable as insurers for 
goods committed to their care as such, except for acts of God 
or the public enemy. Judge Holmes explains this extraor¬ 
dinary liability of carriers as merely a survival of the ancient 
rule (of which there is some doubt) that all bailees were 
subject to this absolute liability. 28 The matter of a general 
bailee’s liability has already been considered, 27 the weight of 
authority being in favor of the view that this absolute liability 
of bailees was modified in the fourteenth and fifteenth centu¬ 
ries so as to make them liable only in case of negligence or 
wilful wrong. Professor Beale points out that innkeepers 
and common carriers were brought under a special rule of 
liability applying to persons engaged in “common” or public 
occupations or filling certain public offices, and therefore based 
on public policy. In 42 Edward III, 11, pi. 13 (1367), an 
innkeeper was held liable for goods of a guest stolen from an 
inn though the landlord was without fault. The court said 
that he was charged by the law, not by his default. In 1410, 
an innkeeper was again held liable in a similar case for the 
same reason. 28 

24 Wigmore, Tortious Responsi- 28 Holmes, Com. Law, Lee. V. 
bility, in Sel. Essays, III, 513, and 27 See §79, ante. 
authorities there cited. 28 11 Henry IV, 45, pi. 18. See 

25 Mason v. Keeling, 12 Mod. 332 Professor Beale’s article, Harv. L. 
(1700). Rev., XI, 158-168. 


HISTORY OF ENGLISH AND AMERICAN LAW 


The earliest authority involving a common carrier’s liability 
seems to suggest an element of carelessness as a basis. In 
Doctor and Student, ch. 38 (1518), it is said: “If a common 
carrier go by the ways that be dangerous for robbing, or 
drive by night, or in other inconvenient time, and be robbed; 
or if he overcharge a horse whereby he falleth into the water, 
or otherwise, so that the stuff is hurt or impaired,” he is 
charged. Later cases made his liability turn on the fact that 
he was paid for carrying the goods and therefore undertook 
to carry them safely. 29 The dictum of Lord Holt in Coggs 
v. Bernard 30 that a common carrier is liable absolutely except 
for acts of God or the public enemy, became the basis of the 
modern rule. In 1785, Lord Mansfield, in a case involving 
destruction of the goods by accidental fire, held the carrier 
liable, saying: “A carrier is in the nature of an insurer.” 81 


§95. Torts of Servants .—From the earliest times, the man 
who directly counseled or procured the commission of a crime 
or tort was as guilty as the man who actually did the deed. 1 
There has never been any question of the liability of the master 
or principal who has ordered his servant or agent to do the 
thing which constitutes the tort, or who subsequently ratifies 
the act of the representative. The difficulty is in finding any 
ancient historical basis of the modern rule that the master is 
liable for the torts of the servant committed within the “scope 
of his employment,” or of the agent within the “scope of his 
authority,” though against the will and without the command 
of the master or principal and often contrary to his express 
orders. 


29 Professor Beale’s article, supra, 
citing Woodlife’s cases, Rolle, Abr., 
I, 2; Morse v. Slue, 3 Keb. 135. 

80 2 Ld. Raym. 909. 

31 Forward v. Pittard, 17 R. 27. 
§95. 1 Poll. & Mait., II, 507, 527. 
JEthel., VIII 23; Leg. Hen., 85, §3; 


Bracton, f. 142. Of course the doc¬ 
trine of the criminal law requiring 
that the principal be convicted be¬ 
fore the accessory can be tried has 
no application to the tort; principal 
and accessory are merely joint 
tort-feasors. 


TORTS 


393 


The very ancient law which made the master absolutely 
liable for acts of his slaves, and of free members of his house¬ 
hold, disappeared after the Conquest with the disappearance 
of slavery. The villein of the thirteenth and fourteenth centu¬ 
ries was not a slave, and the lord was in no way answerable 
for his acts. The modern doctrine may be traced back to 
about 1692. 2 There is very little if any basis for the infer¬ 
ence that the notion of personal identity, a highly imaginative 
fiction at best, was adopted at the end of the seventeenth 
century from an obsolete doctrine of the tenth and eleventh 
centuries. It is evident, from what goes before, that the 
courts in civil liability cases followed closely the lead given 
by the law of crimes. There can be little if any doubt that, 
in the thirteenth century, the master was not liable for the 
act of his servant civilly or criminally except where the servant 
did what the master told him to do, or the master ratified it 
after it was done. 3 There is sufficient authority that, during 


2 See citation of the more impor¬ 
tant cases establishing this doctrine 
in Mr. Wigmore’s article on Tor¬ 
tious Responsibility in Harv. L. 
Rev., VII, 330, 383; Sel. Essays, III, 
474 , 528. 

3 Poll. & Mait., II, 529. Bracton 
speaks only of a disseisin of an¬ 
other committed by servants: the 
master must make amends after the 
matter is brought to his notice; if 
not, he is liable as a disseisor, very 
-probably a case of ratification by 
holding on to the land or chattels 
with knowledge of how his servants 
secured them. Bracton, f. 158b, 171, 
172b, 204b; Poll. & Mait., II, 529. 

It is true that the householder 
was bound to produce a member of 
his household, or mainfast, accused 
of felony, on penalty of an amerce¬ 
ment for failure to do so, and there 


is some evidence of liability of the 
master in tort for wrongful acts of 
his household in records of the local 
courts in the thirteenth century. See 
Wigmore, Tortious Responsibility, 
Harv. L. Rev., VII, 332-335, and Sel. 
Essays, III, 521, 522; but there is 
no record of any such liability hav¬ 
ing been recognized by the King’s 
Court except the evidence from 
Bracton above referred to. There 
was probably some survival of the 
ancient rule making the master ab¬ 
solutely liable in such cases, already 
in practical effect obsolete before 
the Conquest through the master’s 
right to surrender his slave and 
thus avoid liability. Even this had 
completely disappeared centuries be¬ 
fore the modern rule had its ad¬ 
mitted inception. 



HISTORY OF ENGLISH AND AMERICAN LAW 


the following centuries, the courts refused to hold the master 
liable except in cases of express or implied command or rati¬ 
fication. 4 In certain exceptional cases, however, the master 
was liable though the act of the servant was without his com¬ 
mand or even his knowledge. The householder was bound 
to keep his fire from spreading to his neighbor. Therefore, 
if any member of his household, including a guest, caused a 
fire resulting in damage to a neighbor’s property, the house¬ 
holder was liable.® Innkeepers, common carriers, and shop¬ 
keepers supplying food and drink were required by law to 
serve the public properly. Failure to do so through their 
servants made them liable irrespective of whether the servants 
acted by express or implied command or not. In all these 
exceptional cases, there was a violation of a positive duty 
imposed by law. 6 Nevertheless, they contain the germ of 
the modern rule, which charges the master with any wilfully 
wrongful or negligent act of a servant if it is done by him 
as his master’s representative in discharge of his master’s 
business. 

Toward the end of the seventeenth century, the require¬ 
ments of a greatly expanding commercial life made it neces¬ 
sary to broaden the old rule requiring a specific command. 
The immediate control of the master over his servants of the 
earlier simpler time, which may have in a measure justified 
the old narrow rule, was no longer true in fact. Business 
demanded that the master be held liable for the acts of his 
representative done in his behalf in the course of his business 
and therefore within the scope of the servant’s employment. 
Thus Holt, C. J., said in 1698: “Yet if my servant doth 
anything prejudicial to another, it shall bind me, where it 


*Y.B. 20, 21 Edward I, (R. S.), 
16; Y.B. 2 Henry IV, Pasch., pi. 5; 
Y.B. 9 Henry VI, Mich., pi. 37; 
Doctor and Student, ch. 42; Holds- 
worth, II, 306-310. 


5 Y.B. 2 Henry IV, Pasch., pi. 6. 

6 Y. Bks. 2 Henry IV, Pasch., pi. 
5; 11 Henry IV, Hil., pi. 18; 9 
Henry VI, Mich., pi. 37; Holds- 
worth, II, 309. 


TORTS 


395 


may be presumed that he acts by my authority, being about 
my business.” 7 In 1699, the same judge held for the plain¬ 
tiff where the defendant’s servant ran his master’s cart against 
another cart, and where the servant drove the master’s cart 
over a boy. He said: “The act of the servant is the act of the 
master, where he acts by authority of the master.” 8 Black- 
stone sums up the development of the rule up to his time in 
the sentence: “In the same manner whatever a servant is 
permitted to do in the usual course of his business, is equiva¬ 
lent to a general command. The reason of this is still uni¬ 
form and the same—that the wrong done by the servant is 
looked upon in law as the wrong of the master himself.” 9 

From this position, the step was a short one to the modern 
rule that the master is liable for any tort committed by his 
servant while acting within the scope or course of his employ¬ 
ment, and that a principal is liable for torts of his agent 
committed within the scope of his authority. 10 

§p6. Specific Torts Involving Personal Injuries .—We have 
seen how wrongful assaults resulting in personal injuries were 
taken care of by the system of hot and wer during the Saxon 
period and for the first hundred years or less following the 
Conquest. These disappeared during the twelfth century; and 
the semipenal action of trespass did not start as a general 
remedy until beyond the middle of the thirteenth century. 
We are left to conjecture what remedy the injured man had 
during the interval between bot and trespass. Pollock and 
Maitland say: “We take it that they sued for some pre¬ 
appointed bot in the local courts. The king was not to be 
troubled with such trifles. Unfortunately, the records of our 

7 Comb., 459; I Ld. Raym., 264. the steps by which the rule devel* 

8 Jones v. Hart, 2 Salk. 441; Holt, oped, see Wigmore, Tortious Re- 

642. sponsibility, Harv. L. Rev., VII, 

• Bl., Comm., I, 429* 394-402; Sel. Essays, III, 533, 534- 

10 For the leading cases showing 


396 HISTORY OF ENGLISH AND AMERICAN LAW 

local courts do not begin until the influence of Westminster 
is supreme and its action for damages (trespass) is well 
known throughout the country; still we should not be sur¬ 
prised to find that the doomsmen of the hall-moots (manorial 
courts) when they assigned damages for a blow or a ‘villein 
word’ were guided by traditional and half-forgotten tariffs 
and thought but little of ‘the circumstances of the particular 
case.’ ” 1 

The writ of trespass, after it came into effect as a writ of 
course toward the end of the reign of Henry III, was the 
one remedy to recover damages for what we call today an 
assault and battery or a false imprisonment. By this time, 
the idea of suing for damages merely, instead of for the 
recovery of a thing detained unjustly; as a chattel, debt, or 
hot, was fully established, the idea and practice of allowing 
damages coming in through the allowing of damages for 
unlawful detention of land, awarded in addition to the land 
in the assize of novel disseisin, for detention of other things 
in detinue and other actions. 2 Trespass for assault and bat¬ 
tery and for false imprisonment continued thereafter to be 
the regular and only form of action for the redress of these 
torts. The Register contains precedents of writs in trespass 
which allege “insults, beating, wounding, ill-treatment such 
as to endanger life, and ‘alia enormia / " 8 and also imprison¬ 
ment for a ransom or till a claim is released. 4 Other prece¬ 
dents not so common allege abduction, attempts to poison, 
waylay, or kill, and dogbite. 5 

The history of the writ of trespass has been sufficiently 
covered in preceding sections.® The development of the law 
of assault and battery and false imprisonment is part of the 
modern law of torts. 

§96. 1 Poll. & Mait., II, 524. 5 Reg., ff. 97, 99, 102, 109; Holds- 

2 Poll. & Mait., II, 521-523. worth, III, 262. 

3 Holdsworth, III, 262; Reg., f. 93. 8 See §§77, 92, ante. 

4 Reg., f. 93 - 


TORTS 


397 


§ 97 - Personal Torts. — Libel, Slander, and Malicious Per¬ 
secution. —In the Saxon period, defamation was punished by 
hot and wite. 1 In the thirteenth century, in addition to 
amercements for defamation in the manorial courts heretofore 
referred to, 2 regular actions for defamation were common, 
and apparently truth could be set up as a defence. 3 In the 
King’s Court, however, there was no remedy for defamation 
during the thirteenth century. 4 A statute creating the offense 
of scandalum magnatum was enacted in 1275, and reenacted 
in 1379, in more detailed form, the object of which was to 
punish the making or spreading of defamatory statements 
reflecting on the great men of the nation; but this was a 
penal statute designed to preserve the peace, not to give a 
remedy in tort. 6 As Pollock and Maitland say, the relief 
given in the local courts was probably good enough to meet 
the needs of the times, so that there was no need for a new 
writ in the King’s Court." With the decay of the local courts 
following the rise of the local jurisdiction of justices of the 
peace, resort was had to the ecclesiastical courts which asserted 
their jurisdiction in these cases because of the sin involved 
in defamation; and their jurisdiction was recognized both by 
parliament and by the King’s Court. 7 An abuse of this action 


§97. 1 Hloth. and Ead., ch. 11. 
Poll. & Mait, II, 536. 

2 See §92, ante. 

8 Poll. & Mait., II, 536, citing Sel. 
Pleas in Man. Courts, 19, 36, 82, 95, 
109, 116, 143, 170; The Court Baron, 
48, 57, 61, 125, 133, 136. “Malice 
aforethought” and “special damage” 
appear in some of these cases in 
the local courts. See Rolls of the 
court of the Hundred of Wisbech, 
34 Edward I, (1306). Poll. & Mait., 
II, 536 , n. 9. 

4 Poll. & Mait., II, 535 - In a case 
decided in 1295, the King’s Court 
declared specifically that pleas of 


defamation would not be enter¬ 
tained. Rot. Pari., I, 133. The first 
known case in the King’s Court in¬ 
volving defamation was decided in 
1356. Lib. Ass., f. 177, pi. 19- De¬ 
famatory words were alleged in 
trespass cases, however, to enhance 
damages. Holdsworth, III, 316. 

s Stat. Westm., I, ch. 34; 2 Rich¬ 
ard II, Stat. 1, ch. s; 12 Richard 
II, ch. 11. 

8 Poll. & Mait., II, 537 - 
7 Holdsworth, II, 316; 13 Edward 
I, St. 4, ch. 1, §8; 9 Edward II, 
St. 1, ch. 4; Y.B. 12 Henry VIII, 


398 HISTORY OF ENGLISH AND AMERICAN LAW 


in the ecclesiastical courts developed in the practice of acquit¬ 
ted persons suing their accusers for defamation; and a statute 
providing for a prohibition in such cases was enacted in Ed¬ 
ward Ill’s reign. 8 It was not until toward the end of Henry 
VIII’s reign that the King’s Court began to assume juris¬ 
diction in cases of slander and libel. 9 

The church courts were greatly weakened by the reforma¬ 
tion, and the assumption of jurisdiction by the King’s Court 
over cases of defamation, displacing the jurisdiction of the 
church courts, was part of the movement from the ecclesias¬ 
tical to the lay courts. The action took the form of an action 
on the special case for words under the Statute of 13 Edward 
I. 10 From the reign of Edward III to the end of Henry 
VIII’s reign, there were only ten cases of defamation in the 
Year Books, and those were of little consequence. 11 But 
during the reigns of Elizabeth, James I, and Charles I, these 
actions on the special case became very numerous; and during 
this period the rules fixing liability in slander cases became 
established substantially as they are today, actionable defama¬ 
tions being limited to (1) imputations of an indictable offense, 
(2) imputations of diseases which tended to exclude the per¬ 
son affected from society, such as syphilis, leprosy, and the 
plague, (3) imputations of lack of skill or ability in a man’s 
trade, profession, or business, and (4) any defamatory state¬ 
ment actually causing special damage specifically alleged and 
proved by the plaintiff. 12 The danger of throwing open the 
courts to a great mass of petty litigation was undoubtedly the 


Trin., pi. 2, (p. 24) ; 17 Edward IV, 
Trin., pi. 2. 

8 1 Edward III, St. 1, ch. 11. 
9 Holdsworth, III, 317, note 4. 

10 Professor Maitland in Green 
Bag, II, 7; The Court Baron, (Seld. 
Soc. Pub.), 116. As pointed out by 
Mr. Veeder in his article on Defa¬ 
mation, in Sel. Essays, III, 457, the 


fact that the action first appeared 
as an action on the case proves that 
no remedy existed for defamation 
in the King’s Court prior to that 
time. 

11 Veeder, Defamation, in Sel. 
Essays, III, 457. 

12 Veeder, Defamation, id., 458. 


TORTS 


399 


reason for these limitations upon actionable defamation, and 
the same reason has been quite sufficient to cause the courts 
to maintain these limitations to the present time. 1 * 

No distinction between spoken and written defamation ex¬ 
isted in the law until the invention of printing and its rapid 
development in the sixteenth century had made the publication 
of defamatory matter a source of danger to the public peace. 
From the beginning of printing, all publications were subject 
to a thorough censorship, the printing of all unlicensed works 
being punished by severe penalties. In Mary’s reign, the 
Council gave a monopoly of all printing to the Stationers' 
Company, regulating strictly all details of printing and pub¬ 
lishing. In Elizabeth’s reign, all printing was forbidden ex¬ 
cept in London, Oxford, and Cambridge; nothing could be 
published until “seen, perused, and allowed” by the Arch¬ 
bishop of Canterbury or the Bishop of London except special 
work of the Queen’s printers and the law printers under license 
of the chief justice. Penalties for violations were severe, 
including, in some cases, mutilation and death. 14 

This censorship, however, could not effectively control the 
publication of tracts and flying sheets surreptitiously dis¬ 
tributed among the people, dealing with political as well as 
religious controversies, which were becoming common. The 
civil action for defamation was inadequate to meet the situ¬ 
ation. The Star Chamber, a new court established by Henry 
VII as a court of criminal equity, made up of the highest 
officers of the state, with very broad powers, not bound by 
forms or by the rules of evidence, assumed jurisdiction over 
this new form of printed defamation. The law of libel starts 
with the case of De Libellis Favtosis, in 1609, as reported by 

13 Thus Coke said, in Croft v. are not apparently scandalous, these 
Brown, 3 Bulstrode, 167: “We will actions being now too frequent.” 
not give more favor unto actions 14 Veeder, Defamation, id., 461, 
upon the case for words than of 462. 
necessity we ought to, where words 



400 


HISTORY OF ENGLISH AND AMERICAN LAW 


Coke. 10 This case was concerned with a libel in verse by 
which the Bishop and deceased Archbishop of Canterbury were 
attacked. The Star Chamber, borrowing from the Roman 
law, held that such libels were punishable criminally either by 
indictment at common law or by bill as tending to create a 
breach of the peace; and that the truth of the matter charged 
was no defense in case the defamatory matter was published 
in written form, as it would tend to a breach of the peace as 
surely as when false. They refused to be limited by the rule 
of the Roman law which made the unsigned or anonymous 
character of the writing an essential element of the wrong, 
and held that the publication was punishable whether signed 
or anonymous, secret or open. 

The Star Chamber exercised the most complete control over 
all printing until it was abolished in 1640, but the censorship 
was continued in much the same form under several statutes 
until 1695. We find the law of libel, therefore, originating 
in criminal libel borrowed from the Roman law by the Star 
Chamber. The civil libel, or tort, developed after the Star 
Chamber had been abolished and while the censorship was 
gradually losing its power. 16 The law of libel as a tort was 
first declared in 1670. 17 The plaintiff, King, was an attorney; 
and the libel complained of stated that a petition to Parliament 
prepared by King was “stuffed with illegal assertions, inepti¬ 
tudes, and imperfections, and clogged with gross ignorances, 
absurdities, and solecisms.” The court said that, “although 
such general words spoken once without writing or publishing 
them would not be actionable, yet here, they being writ and 


16 5 Coke 25a. 

18 Veeder, Defamation, id., 469, 
470 . 

17 King v. Lake, Hardres, 470, 
Skinner 124, by Chief Baron Hale, 
in the Exchequer. Written defa¬ 
mation was of course actionable 
before under the common law 


rules, provided it came within the 
prescribed limits of those rules. 
This was the first case recognizing 
civil liability for defamatory words 
in writing which would not be ac¬ 
tionable if they had been spoken 
only. 


TORTS 


401 


published, which contains more malice than if they had been 
spoken, they are actionable.” In a later case, the court ex¬ 
pressed the same law in this way: “Words published in writ¬ 
ing will be actionable (though not so when barely spoken) 
which would not be so from a bare speaking of the words, 
because libel perpetuates and disperses the scandal.” 18 All 
question of the extended liability for civil libel was set at rest 
by the case of Thorley v. Lord Kerry, in 1812, 19 in which Sir 
James Mansfield, after admitting that the distinction between 
spoken and written defamation extended back to the time of 
Charles II, establishing the law, said: “if the matter were for 
the first time to be decided this day, I should have no hesi¬ 
tation in saying that no action could be maintained for written 
scandal which could not be maintained for the words if they 
had been spoken.” 

We find, therefore, that remedies for defamation, whether 
spoken or written, have existed from the earliest times, that 
an action on the case was given at common law when the 
local courts were losing their power and the jurisdiction of 
the church courts was giving way to the secular courts, that 
this action was limited to certain forms of defamation pre¬ 
cisely as slander is today, that libel developed as a crime 
through the adoption, in modified form, of the Roman law 
by the Star Chamber, and that slander has never been a crime, 
that truth was always a defense to the civil action for defa¬ 
mation (libel or slander) though not to the criminal libel; 
that libel as a tort originated in the common law courts when 
control over written publications by the Star Chamber and 
by Statute was coming to an end; that any written words 
which injure a man’s reputation are actionable, though they 
would not be actionable if spoken, unless they fall within one 
of the classes of cases fixed by the early law of defamation 
as explained above. 20 

18 Harman v. Delany, Fitzgibbon, 19 4 Taunton 355. 

254. 20 Veeder, Defamation, id., 472. 


27 


402 


HISTORY OF ENGLISH AND AMERICAN LAW 


§98. Nuisance and Negligence .—From the time of Henry 
II, the assize of nuisance existed alongside of the assize of 
novel disseisin to protect the possessor of land against dis¬ 
turbances of his enjoyment caused by wrongful use of adjoin¬ 
ing property. 1 Like novel disseisin it was a real action, and 
could be maintained by or against freeholders only, no remedy 
existing against others guilty of acts of nuisance until the 
development of trespass on the case. 2 

The Assize of Nuisance, prior to the development of tres¬ 
pass on the case, was the one remedy existing for infringe¬ 
ments of easements. This remedy could not be used except 
by a freeholder, and therefore there was no remedy by which 
an easement in gross could be protected, the owner of the 
easement having no corporeal estate of freehold. This may 
be the reason why in England easements in gross have appar¬ 
ently never been recognized as valid, the law clinging to this 
old restriction of the remedy for nuisance after the reason for 
it had disappeared with the development of trespass on the 
case as the normal remedy for nuisances.* With the develop¬ 
ment of trespass on the case the assize of nuisance became 
obsolete and disappeared, case being the appropriate action 
for nuisance arising either out of use of adjoining property 
unreasonably interfering with the plaintiff’s right of enjoy¬ 
ment of his possession, or out of unlawful interferences with 
easements or other incorporeal rights in land. 

Negligence .—Nothing like liability in an action for negli¬ 
gence in the modern sense appeared before the development 
of the action on the case. This sufficiently appears in a fore¬ 
going section dealing with the development of the principles 
of tortious liability in the early law. 4 

The beginning of the modern law of negligence is found 
in the actions on the case in the fifteenth and sixteenth centu- 

§98. 1 Glanv., lib. XIII, cap. 34- 2 Holdsworth, III, 8. 

36; Bracton, f. 233; Poll. & Mait., 8 Holdsworth, III, 129, 130. 

II, 53- 4 See §§ 93 . 94 , <**te. 


TORTS 


403 


ries against innkeepers, common carriers, blacksmiths, and 
surgeons, for failure to use the reasonable degree of skill 
in the discharge of their profession or calling which the law 
exacted of them. 5 6 7 In cases in which the law imposed no 
such duty, an action on the case would lie if the defendant 
had by an express assumpsit undertaken to perform an act 
with due care, and thereafter had acted negligently and un- 
skillfully to the plaintiff’s damage. The earliest cases in 
which such express assumpsits were held to make the defend¬ 
ant liable for negligence were: a ferryman who had under¬ 
taken to take the plaintiff’s horse across the Humber, and 
the horse was drowned because he overloaded the boat; 6 sur¬ 
geons for unskillful treatment of the plaintiff or his animals; 1 
a smith for laming a horse by unskillful shoeing; 8 a barber 
for injury from negligent shaving; 9 a carpenter for unskillful 
building. 10 

These actions were all strictly actions in tort with no ele¬ 
ment of contract, even after assumpsit had developed as an 
independent action. This is clear from the fact that a con¬ 
sideration was never an essential in these actions. In a case 
decided in 1598, in which the defendant had undertaken to 
cure a horse, the court said: “Action on the case lies on this 
matter without alleging any consideration, for his negligence 
is the cause of the action, and not the assumpsit ” Why was 
the assumpsit required in these cases? Professor Ames ex¬ 
plains this by asserting that the early conception of legal 
liability involved a complete absence of participation by the 


5 Holdsworth, III, 331; Y.B. 11 
Hen. IV, pi. 18; Y.B. 19 Hen. VI, 
pi. s; Y.B. 9 Hen. VI, pi. 37- 

6 Y.B. 22 Ass. 94, pi. 41. 

7 Y.B. 43 Edward III, 6, pi. 11; 

xi R. II Fitz., Abr., Act. on Case, 

37; Y.B. 3 Henry VI, 26, pi. 33, 

and other cases cited Ames, Hist. 


of Assumpsit, in Sel. Essays, III, 
260, note 2. 

8 Y.B. 46 Edward III, 19, pi. 19. 

9 14 Henry VII, Rast Ent. 2, b. 1. 

10 Y.B. 11 Henry IV, 33, pi. 60, 
and many other cases in Year Books 
and thereafter cited Ames, Hist, of 
Assumpsit, in Sel. Essays, III, 260, 
note 5. 


404 


HISTORY OF ENGLISH AND AMERICAN LAW 


plaintiff in the transaction out of which the damage arose— 
the typical tort was a battery, an entry, an asportation, by a 
stranger. If the plaintiff by agreement or consent permitted 
the defendant to come in contact with his person or property, 
he assumed the risk; and no liability arose from the defend¬ 
ant’s negligence unless he expressly assumed the risk, the 
assumpsit above referred to, or unless the case was one of 
those in which the law implied a duty to act skillfully. The 
defendant was liable for his negligence in these cases, not for 
breach of a contract to act with care, the assumpsit of the 
defendant serving merely to remove the effect of the plain¬ 
tiff’s participation in the transaction under the old notions of 
liability. 11 

Actions on the case concurrent with detinue against bailees 
for negligence in caring for chattels in their custody, which 
existed for fifty years before assumpsit developed, were also 
actions in tort for negligence, though an express assumpsit 
was required for the same reason as in the cases just dis¬ 
cussed. 12 Consideration was not a requisite, as contract was 
not involved. The liability of the gratuitous bailee for neg¬ 
ligent custody was asserted in Henry VIII’s reign; and Coggs 
v. Bernard left no room for doubt. 13 Innkeepers and common 
carriers were charged by law with liability to use due care, 
and therefore an express assumpsit was not required to hold 
them. 14 

In all cases in which an express assumpsit was required, it 
continued to be essential down through the seventeenth century 
and beyond. But with the passage of time, as the modern 
conception of liability in tort developed, displacing the primi- 


11 Ames, Hist, of Assumpsit, in 
Set. Essays, III, 261, 262. 

12 Statham, Abr., Act. on Case, 
(27 Henry VI, 1449) ; Y.B. 12 Ed¬ 
ward IV, pi. 10; Y.B. 2 Henry VII, 
11, pi. 9. 


18 Keilw., 160, pi. 2 (1510) ; Coggs 
v. Bernard, 2 Ld. Raym. 909. 

14 See cases cited Ames, Hist, of 
Assumpsit, in Sel. Essays, III, 265, 
notes 1 and 2. 


TORTS 


405 


tive notion that participation in the transaction by the plaintiff 
caused him to assume the risk, the assumpsit became a purely 
formal matter which was eventually dropped, making the 
action in form, as it had been in substance from the beginning, 
an action on the case for negligence. 15 

The relation of negligence to trespass has been considered 
in §94 in tracing the development of tortious responsibility. 
We have seen how the old rule of absolute liability for any 
wilful act gave way to the modern principle that the act must 
be something more than mere accident; that it must be know¬ 
ingly or negligently wrongful in the sense that the harm 
resulting could reasonably have been foreseen by the wrong¬ 
doer and therefore should have been avoided. The standard 
of duty to act with due skill or care had little development 
through the actions of case based on an express or implied 
assumpsit which are discussed above. The fixing of a stand¬ 
ard of care and foresight by which to determine whether a 
trespass resulting in a personal injury was wrongful or not, 
where the wrongful result was not intended, undoubtedly had 
much to do with the rounding out of the modern law that 
all persons are required to use due care under the circum¬ 
stances in everything they do, the standard being the degree 
of care and foresight which the man of average intelligence 
would have used under the circumstances of the case, any 
special skill, as that of a doctor, or any special misfortune, as 
blindness, being considered as one of the circumstances of the 
case in applying the test. 16 

The modern development of pleading with the elimination 
of the old forms of action, and with the requirement of merely 


is Ames, Hist, of Assumpsit, in 
Sel. Essays, III, 262, 264. 

18 Holmes, Com. Law, Lee. III. 
Judge Holmes outlines the way in 
which the law of negligence has 
grown through experience in apply¬ 
ing standards of care in well-defined 


situations frequently recurring, rules 
of conduct governing such cases 
being involved in concrete form. 
See also Wigmore, Tortious Re¬ 
sponsibility, in Sel. Essays, III, 516, 
518. 


4 o6 HISTORY OF ENGLISH AND AMERICAN LAW 


stating the facts required to secure the relief asked for, has 
changed a great many actions from trespass to negligence. 
Today actions for personal injuries not involving intentional 
assault and battery, but turning on failure to use due care 
in a wilful act resulting in a bodily trespass, are classed as 
actions in negligence rather than in trespass. In this way, 
the law of negligence has grown so that it covers all personal 
injury cases which are not actions of assault and battery. 

Death from wrongful act, whether resulting from the wilful 
or negligent wrong of the wrongdoer, was without remedy 
at common law. All actions in tort died with the person, 
according to the early law. This has continued to be the law 
except as modified by statute. In 1330, a statute was enacted 
providing that executors of the person injured could sue for 
trespasses to goods and chattels as the decedent would have 
done had he lived. 17 In 1833, an English statute provided 
for the survival of actions for injuries to real estate on the 
death of the owner for the benefit of his personal estate; and, 
on the death of the wrongdoer, his estate could be held liable 
for wrongs done by him within six months before his death 
“to another in respect of his property, real or personal.” In 
either case, the action has to be started within six months 
following the death. 

These statutes related only to property wrongs. They in 
no way affected actions for personal injuries; and, if the person 
injured died of his injuries, the action died with him, and his 
widow and next of kin were without remedy. Lord Camp¬ 
bell’s Act, 18 enacted in 1846, met this situation by giving a 
right of action to the personal representatives of the deceased 
whose death was due to a wrongful act, neglect, or default, 
so that if he had not died he would have had a good cause 
of action for his injuries, the recovery by the representative 
being “for the benefit of the wife, husband, parent and child” 


17 4 Edward III, ch. 7. 


18 9 & 10 Viet., ch. 93. 


TORTS 


407 


of the deceased, not for the benefit of his personal estate. 
In 1864, this statute was amended so as to permit the bene¬ 
ficiaries to sue in their own names if there is no personal 
representative, or if no action is brought by the representative 
in six months. 19 

In New York, the Revised Statutes which took effect in 
1830 provided for the survival of all actions for wrongs to 
property, real or personal, in favor of the estate of the person 
wronged, and against the estate of the deceased wrongdoer. 20 
A statute had been in effect since 1801 providing for such 
survival of actions for wrongs to personal property only. 

In 1847, a year after Lord Campbell’s Act, a similar statute 
was enacted in New York, the action being given to the 
personal representative, and the amount recovered being for 
the benefit of the widow and next of kin of the deceased. 21 
Similar statutes have been enacted in the other states. 

19 27 & 28 Viet., ch. 95. 21 Laws of 1847, ch. 450. 

20 2 Rev. Stat. (N. Y.) 447, §§1-2. 


CHAPTER XVIII 


DEVELOPMENT OF CONTRACT 

§pp. Contract in Saxon and Early Norman Times .— 
Contract in its modern sense as a consensual agreement en¬ 
forceable by law simply did not exist in this early period. 
During Saxon and early Norman times, the first rudiments of 
contract are found in barters and sales, executed transactions 
in which no question of credit arose, the exchange of goods for 
goods or goods for money taking place at the same moment, 
involving no element of obligation or promise to pay. 1 The 
next development was the sale on credit and the loan, in each 
case giving rise to a debt. But, in these cases, there was no 
idea of obligation based on the debtor’s promise to pay. The 
debt or obligation arose out of the receipt of the goods sold or 
money loaned, not from any promise to pay or repay. The 
creditor sued for the recovery of the debt as for a thing— 
property—which was his and which was unjustly detained by 
the debtor. 2 When a gage or pledge was given to secure the 
debt, whether arising from a sale or loan or a wergild or hot 
payable in instalments, at first the property turned over as 
security was regarded as satisfying the debt, the only remain¬ 
ing obligation being that of the creditor to return the gage 
on payment of the debt. No element of promise was involved. 
The debtor simply sued to recover his property. 8 

These transactions, executed in whole or in part, are the 
so-called “real contracts” of the Roman law. To what extent 
formal contracts, binding because of the formalities by which 
they were made and by which they were clothed so as not to 
be mere nude pacts, were part of this early Saxon law, must 
be considered briefly. 

§99. 1 Poll. & Mait., II, 183. II, 73. See §100, post. 

* Id., II, 183, 184; Holdsworth, » Poll. & Mait., II, 184. 


DEVELOPMENT OF CONTRACT 


409 


The Franks and the Lombards developed a kind of formal 
contract, the tides facta, by which the debtor formally pledged 
his faith “with gage and pledge,” the gage taking the form 
of a rod, festuca. This ceremony seems to have developed 
from the giving of substantial pledges fully covering the 
amount of the wer or other debt, as explained above. Grad¬ 
ually the rod, glove, or other object, took the place of the 
substantial pledge and became a mere form symbolizing the 
pledging of the faith of the debtor. The church found in 
this the pledging of the debtor’s Christianity, his hope of 
salvation, and enforced such contracts by penitential disci¬ 
pline. 4 There is little or no evidence, however, that formal 
written contracts were enforceable as such in the Europe of 
this early time. Writings were apparently confined almost 
exclusively to conveyances of land. 5 

How far the tides facta, or pledge of faith, had come into 
use in England prior to the Norman Conquest is matter of 
conjecture. The God-borh of Alfred’s laws has been referred 
to heretofore. 6 There is evidence of promises secured by 
oath; but, as Pollock and Maitland say, we cannot tell whether 
a merely symbolic gage would bind a bargain in any case. 
There is nothing definite before Glanville’s treatise. In Glan- 
ville and Bracton, especially in the latter, we find some attempt 
to revive the ancient Roman law of contract, but it was with¬ 
out effect. Bracton’s chapters on Contract teach us, as Pollock 
and Maitland put it, “that, at the end of Henry Ill’s reign, 
our King’s Court has no general doctrine of contract.” 7 

The jurisdiction of the ecclesiastical courts over promises 
based on a pledge of faith may be disposed of very briefly, 
as it had no lasting influence on the development of the law 
of contract. The courts Christian undoubtedly claimed juris¬ 
diction in all such cases. The Constitutions of Clarendon 

*Id., II, 185-190; Holdsworth, II, 

73 - 

« Poll. & Mait., II, 190. 


“See §8, ante. 

7 Poll. & Mait., II, 192. 


4io 


HISTORY OF ENGLISH AND AMERICAN LAW 


(1174) expressly excluded them from meddling with cases 
involving the debts of laymen. The King’s Court, in the 
enforcement of that statute, issued writs of prohibition pre¬ 
venting the church courts from exercising jurisdiction over 
claims against laymen, and they did not inquire particularly 
as to whether a debt legally enforceable in the lay courts ex¬ 
isted or not. The struggle between the two jurisdictions went 
on during the thirteenth and fourteenth centuries, the King’s 
Court finally taking the position that the only promises coming 
within the spiritual jurisdiction were those concerning spiritual 
matters. 8 One result of this struggle was that the King’s 
Court refused to recognize the formal contract. The pledge 
of faith, either by a mere symbolic gage or by hand-clasp, was 
not enough. A debt based on a quid pro quo had to be 
established. 9 The history of contract in the thirteenth century 
and beyond falls into two classes of cases, in addition to the 
church court’s jurisdiction over contracts based on pledges of 
faith just described, viz., cases of debt and of covenant based 
on contracts under seal. 

§100. Debt .—The character of the action of debt is well 
illustrated by the form of the writ as given by Glanville. It 
directs the sheriff to order the debtor to render a stated sum 
which he owes to the plaintiff, “and whereof the plaintiff 
complains that the defendant unjustly deforces him,” and, if 
he will not obey, he is to be summoned before the King’s 
Court. The plaintiff is “deforced” of money just as in a 
writ of right he is “deforced” of land. It is true that the 
term “deforces” disappeared from the writ shortly after Glan- 
ville’s time, the word debet taking its place; but this seems to 
have been a matter of form, not of substance. The plaintiff 
sought to recover the money due as his property. The mod¬ 
em conception of a mere chose in action as distinguished from 


8 Id., II, 196-200. 


9 Id., II, 200, 201. 


DEVELOPMENT OF CONTRACT 


411 

property ownership was far away, just as it was in the reversed 
position in detinue where a judgment for the thing detained 
was satisfied by payment of its value. In things not land, 
whether debts or chattels, the thing owned seems to have been 
regarded as its money value, and, in either case, the recovery 
of that value satisfied the plaintiff’s claim. 1 

Debt was rare in the King’s Court down to the latter part 
of Henry Ill’s reign. Plaintiffs had to promise the king a 
quarter or a third of the recovery in return for the writ, 
showing, as Pollock and Maitland point out, that credit was 
seldom given, except where the debtor had allowed judgment 
to be taken against him in advance for the amount of the debt 
or had executed a recognizance, amounting to the same thing, 
by which he gave the- lender the right to levy on his lands 
and goods therefor if the debt was not repaid when due. 
Indeed, in the great majority of cases, the careful creditor 
seems to have protected himself in this way, which accounts 
for the scarcity of actions of debt in the thirteenth century. 2 

Debt was used most frequently to recover a loan of money; 
later it came into use to recover the purchase price of goods 
sold. Records are so few prior to Glanville that we are left 
largely to conjecture as to the scope of debt theretofore; but 
that is true also of every other phase of the law. We may 
safely conjecture that as with land so with chattels, sales were 
not frequent, and were limited mostly to simple barter or for 
money paid down without credit up to the beginning of the 
thirteenth century. We know of the way in which the social 
and economic development of the thirteenth century brought 
about free alienation of land, and this had its counterpart in 
traffic in chattels and loans. By Edward I’s time, debt was 
being used also in three other classes of cases, to recover rent 
due under a lease, money due from a surety, and a fixed sum 
due under a sealed instrument. It could be used in any case 


§100. II, 203. 


2 Id., 203, 204. 201, 202. 


412 


HISTORY OF ENGUSH AND AMERICAN EAW 


where a fixed, liquidated sum was owing. In all these cases, 
the defendant had received some substantial thing from the 
plaintiff, creating the debt. 3 There was no formulated doc¬ 
trine of quid pro quo. The law of debt developed from typical 
cases such as loan and sale, extending outward so as to include 
other cases of liquidated or fixed debts not based on a mere 
promise to pay. There can be no doubt that a gratuitous 
promise to pay would not be enforced because no debt was 
created, and the law was still very far from enforcing a con¬ 
tract not under seal which did not create a debt. 4 Debt was 
always limited to cases where a fixed sum was claimed. It 
was a long time before unliquidated damages for breach of 
contract could be recovered. 

§101. Covenant.—Contracts Under Seal. —The first writ 
of covenant ( breve de conventione) appeared just at the begin¬ 
ning of the thirteenth century. 1 Prior to that time, no such 
thing as a contract under seal was recognized in English law. 
It arose to supply the need for an action to enforce leases for 
years, then coming into more general use. We have already 
seen that, before the development of the writ Quare ejecit 
infra terminum, and still later of the writ ejectio firmae, cove¬ 
nant was the only remedy which a tenant for years had if 
evicted by his landlord. 2 Later it was used in family settle¬ 
ments, the feoffee covenanting to make a refeoffment. At 
first, therefore, such actions related only to land; but the 
Statute of Wales (1284) provided that the freehold could 
not be recovered by this action, and declared further that 
enforceable covenants are infinite in number so that no list 
of them could be made, thus establishing beyond question that 
covenants could be enforced, without limitation as to their 

8 Id., 205, 206, 208, 209. ful specimen). Select Civ. Pleas, 

4 Id., 2io, 211. (Selden Soc.), pi. 89 (1201). Poll. 

§101. 1 Rolls of the King’s Court, & Mait., II, 214, note 2. 

(Pipe Roll Soc.), 53, (1194, doubt- 2 See §32, ante. 


DEVELOPMENT OF CONTRACT 


413 


scope, the judgment awarded being for damages only where 
the freehold was involved. A peculiar limitation on this 
action has been pointed out by Professor Ames. It could 
not be maintained for a debt attested by an instrument under 
seal. For a debt based on a sale, loan, or other similar 
transaction, debt was the appropriate action; and, prior to 
the seventeenth century, covenant would not lie, though the 
debtor had executed a promise under seal. A debt for a 
fixed sum created by specialty was regarded as created by 
grant, and debt alone would lie to enforce it. 8 

As to form, after a good deal of hesitation, during which 
time some unwritten leases were undoubtedly given effect, it 
was settled before the end of Edward I’s reign that a deed 
was necessary, “sealed by the party to be charged therewith.” 
In this way, the formal contract came into the English law 
as an instrument under seal, though the old formal contract 
of the continent with its symbolic wed or the grasp of hands 
had been rejected 4 

§102. Parol Contracts prior to Assumpsit .—Before the 
development of the action of assumpsit, there was no remedy, 
as we have seen, by which parol consensual contracts not based 
on a debt could be enforced; and, in those cases where a debt 
had arisen out of an executed transaction such as a loan or 
a sale, the action of debt alone would lie, based on the debt, 
and in no respect on the promise to pay the debt. In the 
fourteenth and fifteenth centuries, the doctrine of quid pro quo 
as the essential basis of debt became established as the receipt 
of anything by the debtor of substantial benefit to him or to 
another at the debtor’s request. Besides the obvious cases of 
loans, sales, leases, and work and labor, it was held that a 
release by an obligee to an obligor was a sufficient quid pro 
quo to create a new debt between the same persons, 1 as was 

3 Ames, Harv. L. Rev., II, 56. §102. 1 Y.B. 12 Henry IV, 1 7 , 18. 

* Poll. & Mait., II, 217, 218. 


414 


HISTORY OF ENGLISH AND AMERICAN LAW 


forbearance to sue on a claim. 2 A promise for a promise 
created no debt, and therefore neither promise could be en¬ 
forced unless under seal. 3 For a long time the quid pro quo 
had to be a benefit to the debtor, not to another at the debtor’s 
request. 4 * Later, it became established law that such a benefit 
to a third person would be sufficient to give rise to debt pro¬ 
vided the third person incurred no liability. 8 If he incurred 
liability, the third person would be the debtor and alone liable 
in debt. 6 

In bailments, detinue was the appropriate action, the con¬ 
tract having been executed on one side by virtue of the bail¬ 
ment. Detinue was also the remedy in case of a sale and 
payment of the price, with a refusal by the vendor to deliver 
the goods. What at first sight looks like a parol executory 
contract enforced by the courts is the doctrine laid down by 
Chief Justice Fortescue. “If I buy a horse of you, the prop¬ 
erty is straightway in me, and for this you shall have a writ 
of debt for the money, and I shall have detinue for the horse 
on this bargain.” 7 But instead of mutual promises here, 
the courts regarded the transaction as constituting reciprocal 
grants, each grant of a right being the quid pro quo of the 
other. 


§103. Special Assumpsit .—There being no way by which 
express parol contracts not giving rise to a debt could be 


2 Bidwell v. Catton, Hob. 216; 
Ames, Parol Contracts, in Harv. L. 
Rev., VIII, 252-264; Sel. Essays, 
HI, 315. 

8 Smith v. Airey, 2 Ld. Raym. 
1034; Sel. Essays, III, 315. 

4 See Y.B. 9 Henry V, 14-23. 

6 Y.B. 37 Henry VI, 9-18; Stone- 

house v. Bodvil (father liable for 

physic supplied his daughter) ; Bret 


v. J. S., Cro. Eliz. 880, (a mother 
for board furnished her son); 
Shandors v. Stinson, Cro. Eliz., 
88o, (mistress for the embroidering 
of a dress for a maid) ; Harris r. 
Finch, Al. 6. 

8 “There cannot be a double debt 
upon a single loan.” Per Cur., 
Marriott v. Lister, 2 Wils. 141, 142. 

7 Y.B. 20 Henry VI, 35; Y.B. 21 
Henry VI, 55. 


DEVELOPMENT OF CONTRACT 


415 


enforced directly, judges and lawyers were forced to find an 
indirect method for their enforcement. The door having been 
definitely closed to the creating of new writs, there was still 
left the action on the case, the extensive use of which we have 
already observed in tracing the development of trover, slander 
and libel, nuisance and negligence. The primary purpose of 
the action on the case was, of course, to permit a remedy on 
the special facts of any given case where a wrong in tort 
existed and justice demanded a remedy, but where the case 
did not fall within the narrow limits of the common law writs 
of trespass, waste, or detinue. It is not surprising to find, 
therefore, that the first assumpsits set forth in declarations 
were in actions on the case in tort for negligence, viz., against 
a ferryman for negligently drowning a horse which he had 
undertaken to ferry across a river; 1 against surgeons for 
unskillful treatment of persons or animals they had under¬ 
taken to cure; 2 against a smith, a barber, and a carpenter 
who undertook, respectively, to do their work with care and 
skill, but who failed to carry out their undertaking. 8 In these 
cases there was no question of consideration involved, since 
the wrong arose out of the negligence of the defendant, not 
out of the express or implied assumpsit or undertaking. Thus 
it is stated in Powtuary v. Walton (1598), 4 a case of unskill¬ 
ful treatment of a horse by the defendant: “Action on the 
case lies in this matter without alleging any consideration, for 
his negligence is the cause of action, and not the assumpsit.” 
Yet the allegation of the assumpsit was essential to the cause 
of action in these cases, except in the cases of smiths, common 
carriers, and innkeepers, where the assumpsit was implied 

§103. 1 Y.B. 22 Ass., 94, pi. 41. 3 Y.B. 46 Edward III, 19, pi. 19; 

2 Y.B. 43 Edward III, 6, pi. II, 14 Henry VII, Rast. Est. 2, b. 1; 
and other cases cited by Professor Y.B. 11 Henry IV, 33, pi. 60, and 
Ames, Hist, of Assumpsit, Harv. other cases cited by Professor 
L. Rev., II; Sel. Essays,, III, 260, Ames, Id., notes 3, 4, and 5. 
note 2. 4 Rolle, Abr., I, 10, pi. 5. 


4 i6 HISTORY OF ENGLISH AND AMERICAN LAW 

from the nature of their business. This arose from the ancient 
notion of liability in tort that those expressly authorized to 
deal with the person or property of another were not liable 
for the damage they might do unless they had expressly 
assumed or undertaken to act skillfully and with due care. 
Therefore, although an express agreement or undertaking was 
involved, the case turned entirely on the tort arising out of 
not living up to the undertaking, not on any breach of con¬ 
tract as such. 8 

Another class of cases in which an assumpsit was an essen¬ 
tial allegation, arising somewhat later, but still fifty years 
before the action of assumpsit was first allowed, was actions 
against bailees for negligent damage to things in their charge. 
We have already seen how case became concurrent with deti¬ 
nue, the usual remedy against bailees. 8 This action for neg¬ 
ligence was purely an action in tort, the assumpsit being 
required to fix liability for exactly the same reason as in the 
earlier cases above discussed; and consideration was imma¬ 
terial in these cases as in the others, gratuitous bailees being 
liable for damages to goods in their custody due to their 
negligence provided an assumpsit was shown. 7 At a later 
time in all these cases, the assumpsit was implied either from 
the bailment or from the character of the service to be ren¬ 
dered, and eventually the archaic notion that an assumpsit is 
necessary to fix liability for negligence by individuals author¬ 
ized to deal with the persons or chattels of another disap¬ 
peared from .the law. The important fact to note here, how¬ 
ever, is that, If or a considerable time prior to the introduction 
of the action of special assumpsit, and up to that time, assump¬ 
sits in the form of parol undertakings or promises were essen¬ 
tial parts of these actions on the case. 

Actions on the case for deceit upon a false warranty against 

8 Ames, Hist, of Assumpsit, id., 7 Keilw., 160, pi. 2 (1510). Ames, 
261, 262; Holdsworth, III, 332, 333. Hist, of Assumpsit, id., 263, 264. 

8 See §79, ante. 


DEVELOPMENT OF CONTRACT 


417 


the vendor of a chattel, present another class of cases more 
closely related to the final step by which special assumpsit 
became established than any of the others. In spite of the 
parol warranty, this was at first an action in tort. In what 
Professor Ames refers to as perhaps the earliest reported case 
upon a warranty, 8 the defendant raised the objection that the 
action was in the nature of covenant and no specialty was 
shown; but the court overruled the objection, “for it is a writ 
of trespass.” Consideration was immaterial as in the other 
classes of cases heretofore considered. An express warranty 
was necessary in these cases, just as an assumpsit was required 
in the others. 9 The modern rule that a sale by particular 
description implies a warranty that the article sold is of that 
description, was still far ahead. The tort arose out of the 
deceit from the sale induced by the false warranty. 

Express assumpsit developed from another class of actions 
on the case for deceit. In the first of these cases, the writ 
declares that the defendant, for a sum to be paid him, under¬ 
took to buy a manor of one J. B. for the plaintiff; “but that 
he, by collusion between himself and one M. N., contriving 
cunningly to defraud the plaintiff, disclosed the latter’s evi¬ 
dence, and falsely and fraudulently became of counsel with 
M. N., and bought the manor for M. N. to the damage of 
the plaintiff.” 10 In sustaining the court, Cotesmore, J., said: 
“I say, that matter lying wholly in covenant may by matter 
ex post facto be converted into deceit . . . when he becomes 
of counsel for another, that is a deceit, and changes all that 
was before only covenant, for which deceit he shall have an 
action on his case.” 

The next case was more difficult. The plaintiff alleged that 
he bargained with the defendant to buy of him certain land 

«Fitz., Abr., Monst. de Faits, pi. 10 Ames, Hist, of Assumpsit, id., 
160, (1383). 271; Y.B. 11 Henry VI, 18, pi. 10; 

8 Ames, Hist, of Assumpsit, id., 24, pi. I; 55, pi. 26. 

267-269; Holdsworth, III, 333. 


28 


4 i8 HISTORY OF ENGLISH AND AMERICAN LAW 


for £100 in hand paid, but that the defendant had enfeoffed 
another of the land, and so deceived him. Two of the judges 
thought the count bad, seeing no distinction between this case 
and cases of simple breach of parol contracts in which no 
remedy existed in the absence of debt. The majority favored 
the action, but the case was adjourned. 11 In a case decided 
in 1476, 12 and in another decided in 1487, 13 similar in their 
facts, the court impliedly recognized that the action would lie. 
In 1488, the court in explicit terms states that an action on the 
case will lie where a contract to convey land is broken by 
conveyance to another, “For when he undertook to make 
the feoffment, and conveyed to another, that is a great mis¬ 
feasance.” 14 Thus it was established beyond question before 
the end of the fifteenth century that case for deceit would lie 
to recover damages for what was actually nothing more than 
a breach of a parol contract. It was, of course, perfectly 
plain that no substantial difference existed between the case 
where the contract to convey was broken by conveyance to 
another and where it was broken by mere refusal to convey. 
The damage to plaintiff was the same in both cases. In 1504, 
this shadowy distinction was abandoned, Frowyk, C. J., say¬ 
ing, after stating the case of a feoffment to a third person: 
“And so, if I sell you my land and covenant to enfeoff you 
and do not, you shall have a good action on the case, and this 
is adjudged. . . . And if I covenant with a carpenter to 
build a house and pay him £20 for the house to be built by 
a certain day, now I shall have a good action on my case 
because of payment of money, and still it sounds only in 
covenant and without payment of money in this case no 
remedy, and still if he builds it and misbuilds, action on the 
case lies. And also for nonfeasance, if money paid case 
lies.” 15 

11 Y.B. 20 Henry VI, 34, pi. 4, 1* Y.B. 3 Henry VII, 14, pi. 20. 

(1441). 18 Keilw., 77, pi. 25; Y.B. 20 Henry 

12 Y.B. 16 Edward IV, 9, pi. 7 - VII, 8 , pi. 18. 

18 Y.B. 2 Henry VII, 12, pi. 15. 


DEVELOPMENT OF CONTRACT 


419 


In 1520, this action was extended so as to permit case 
against a parol guarantor for the price of goods sold to a 
third person, the detriment to the plaintiff, not the benefit to 
the defendant, being the basis of the action. 16 The giving of 
time or labor by the promisee was soon recognized as falling 
within the principle of the new action. Thus a detriment to 
the promisee, on the faith of the promise, became and has 
since remained a valid consideration to support a promise 
given therefor. 

We see, therefore, that assumpsits, used first in actions on 
the case in tort for the purpose of establishing tortious respon¬ 
sibility, were carried over, probably from actions on the case 
for deceit arising out of breach of warranty against vendors 
of chattels, to cases involving nothing more than breach of 
simple contract where the plaintiff had been induced to part 
with money, goods, time, or services, or incur other detriment 
on the faith of the promise. Though based on the supposed 
“deceit” involved in breaking the contract relying on which 
the detriment had been incurred, and therefore being regarded 
as actions in tort, these new actions on the case in assumpsit 
were really actions to enforce parol promises; and, as Pro¬ 
fessor Ames puts it, “By a natural transition, however, actions 
upon parol promises came to be regarded as actions ex con¬ 
tractu. Damages were soon assessed, not upon the theory 
of reimbursement for the loss of the thing given for the 
promise, but upon the principle of compensation for the failure 
to obtain the thing promised.” 17 By the early part of the 
sixteenth century, this process was completed by the estab¬ 
lishment of the rule that the cause of action in assumpsit sur¬ 
vived the death of either party, as in the case of covenants. 18 

In 1615, it was decided both by the Common Pleas and the 


18 Y.B. 12 Henry VIII, II, pi. 3. 
17 Ames, Hist, of Assumpsit, id., 
275, 276. For more detailed de¬ 
scription of development of this 


rule, see Holdsworth, III, 335*342- 
18 Lyate v. Pinchion, 9 Coke 86; 
Sanders v. Esterby, Cro. Jac., 417; 
Ames, Hist, of Assumpsit, id., 276. 


420 


HISTORY OF ENGLISH AND AMERICAN LAW 


King’s Bench that a promise is a sufficient consideration for 
another promise, being a detriment to the promisor, making 
purely executory bilateral contracts enforceable by assumpsit. 10 

§104. Indebitatus Assumpsit .—This action developed dur¬ 
ing the latter half of the sixteenth century, making assumpsit 
concurrent with debt. At first, besides showing the existence 
of the debt, an express assumpsit or promise to pay the debt 
had to be proved. 1 Cases in the Queen’s Bench holding that 
a simple contract debt without an express promise to pay it, 
would support an indebitatus assumpsit, though several times 
reversed in the Exchequer Chamber, finally triumphed in 
Slade’s Case (1603). 2 From that time on, indebitatus assump¬ 
sit became concurrent with debt in all cases, the assumpsit or 
promise to pay the debt being implied from the debt itself. 
It therefore became a form of implied as distinguished from 
express assumpsit. Assumpsit was preferred by creditors to 
the action of debt principally because it gave the right to trial 
by jury instead of the ancient wager of law, and also because 


19 Nichols v. Raynberd, Hobart, 
88; Holdsworth, III, 345. Profes¬ 
sor Ames says that Peck v. Redman 
(1555), Dy. 113, “appears to be the 
earliest case of mutual promises.” 
Ames, Parol Contracts, in Sel. Es¬ 
says, III, 313, note 2. 

§104. 1 Brooke, Abr., Action on 

Case, pi. 5, pi. 105. 

2 4 Coke 92a; Ames, Hist, of As¬ 
sumpsit, id,., 276, 277, 283. It was 
resolved in Slade’s Case that “every 
contract executory imports in itself 
an assumpsit, for when one agrees 
to pay money, or to deliver any¬ 
thing, thereby he assumes or prom¬ 
ises to pay or deliver it; and there¬ 
fore, where one sells any goods to 
another, and agrees to deliver them 
at a day to come, and the other, in 
consideration thereof, agrees to pay 


so much money at such a day, in 
that case both parties may have an 
action of Debt, or an action on the 
case in assumpsit, for the mutual 
executory agreement of both par¬ 
ties imports in itself reciprocal ac¬ 
tions on the case as well as actions 
of Debt.” 

To modern ears the need of im¬ 
plying an assumpsit or promise to 
pay the debt, when the debt arose 
out of an express promise, sounds 
very odd. Before Slade’s case the 
difficulty seems to have been that 
the words of the original promise 
were regarded as exhausted in cre¬ 
ating the debt, and therefore more 
words of promise to pay the debt 
were necessary in order that an 
assumpsit should lie. See Ames, 
Hist, of Assumpsit, id., 282. 


DEVELOPMENT OF CONTRACT 


421 


a general allegation of the nature of the indebtedness as for 
goods sold, money lent, work and labor at defendant’s request, 
was all that was required in indebitatus assumpsit, while a 
full description of the goods sold, services rendered, and all 
other details of the transaction were required in the action of 
debt. In this way, the common counts in assumpsit origi¬ 
nated. 3 


§105. Implied Assumpsit. —We have just seen how indebi¬ 
tatus assumpsit developed as concurrent with debt based on a 
supposed implied promise to pay the debt, in form a kind of 
implied assumpsit, but in fact based on the express promise by 
which the debt was created, and supported by the same con¬ 
sideration; viz., the quid pro quo, or benefit to the promisor. 

A few years after Slade’s Case, the action of assumpsit was 
brought into use to give a remedy in another class of simple 
contract cases in which no remedy whatever existed prior to 
that time. Where services were rendered or goods furnished 
on request but without any agreement as to the rate or amount 
of compensation, the person rendering or supplying the serv¬ 
ices or goods could not sue in debt because debt could be 
brought only for a definite agreed sum. 1 Covenant could not 
be brought because there was no specialty. Assumpsit would 
not lie for lack of an express promise. The first case in which 
a promise to pay the reasonable value was held to be implied 
in fact so as to permit an action in assumpsit, was decided 
in favor of an innkeeper against his guest in 1609. 2 A similar 
holding in favor of a tailor followed the next year. 8 In 1628, 


8 Ames, Hist, of Assumpsit, id., 
284, 285. 

§105. 1 “If I bring cloth to a 
tailor to have a cloak made, if the 
price is not ascertained beforehand 
that I shall pay for the work, he 
shall not have an action against 
me.” Y.B. 12 Edward IV, 9. pi. 
22. See other cases to same effect 


Ames, Hist, of Assumpsit, id., 285, 
note 7. 

2 Warbrooke v. Griffin, 2 Brownl. 
254, Moore, 876, 877. 

8 Six Carpenters’ Case, 8 Coke 
147a. A statement that debt would 
lie in that case was not law. See 
Ames, Hist, of Assumpsit, id., 286. 


422 


HISTORY OF ENGLISH AND AMERICAN LAW 


in a case of work done for another at his request without 
agreement as to the amount of compensation, the court said 
that an action would lie only in a case where an express 
promise was made to pay for the services either before or 
after they were rendered. Sheppard in 1632, however, said: 
“If one bid me do work for him, and do not promise anything 
for it; in that case the law implieth the promise, and I may 
sue for the wages.” 4 5 6 In 1661, the doctrine as applied to the 
innkeeper was extended to the common carrier. 8 

Cases decided in 1603 and 1662 establish that a surety had 
no action against the debtor whose debt he had paid in the 
absence of an express promise to indemnify him. 0 It was not 
until 1757 that an assumpsit on an implied promise to indem¬ 
nify the surety was allowed, Lord Mansfield holding that 
“when a debtor desires another person to be bound with him 
or for him, and the surety is afterwards obliged to pay the 
debt, this is a sufficient consideration to raise a promise in 
law.” 7 

It is true that equity gave relief to tailors and other persons 
rendering services or supplying goods on request without ex¬ 
press agreement as to the compensation, and also to sureties 
by way of indemnity or contribution before assumpsit to 
recover quantum meruit had developed at law; but this hardly 
accounts for the tardy development of this relief in the law 
courts, as this jurisdiction in equity does not seem to have 
amounted to much. Spence refers to a case of this kind in 
favor of a tailor decided in Chancery in 1567; and he states 
that there were suits for wages and many others of like 
nature. 8 A bill by a surety without a counterbond in which 


4 Actions on the Case (2nd ed.) t 
50. Ames, Hist, of Assumpsit, id., 
286. 

5 Nichols v. More, 1 Sid. 36. 

6 Yelv. 40; Scott v. Stephenson, 

1 Lev. 71. 


7 Decker v. Pope, Set. N. P. (13th 
ed.), I, 91. Ames, Hist, of Assump¬ 
sit, id., 287. 

8 Spence, Equitable Jur., I, 694; 
Ames, Hist, of Assumpsit, id., 288. 


DEVELOPMENT OF CONTRACT 


423 


he had a decree against his principal was decided in 1662. 9 
At best, equity gave relief in these cases for a comparatively 
short time prior to the remedy by implied assumpsit. The 
fundamental reason for the slow and tardy development of 
the entire law of contract is that the simple society of the 
early centuries of the common law, based on property owner¬ 
ship rather than upon trade or commerce, felt little need of 
a law of contract, and such needs as existed were probably 
met fairly well by the actions of debt and covenant. As com¬ 
mercial life developed, ways were found as outlined above to 
give force and effect to the different kinds of parol contracts, 
probably as the needs of a developing commerce required them. 

In addition to the quantum meruit cases in which the implied 
assumpsit was the only remedy, it became a concurrent remedy 
with detinue and case against bailees in the reign of Charles I. 
In the eighteenth century, it was used also against common 
carriers and innkeepers, based on their promises implied in 
fact. It became concurrent with account against a factor or 
bailiff about the close of the seventeenth century, the implied 
promise to account arising from the bailiff’s employment. 10 
Actions upon bills and notes were finally brought in the form 
of assumpsit. 11 

§106. Indebitatus Assumpsit to Enforce Quasi-Contracts, 
or Contracts Implied by Law. —Quasi-contracts are not con¬ 
tracts in any true sense. They do not depend on mutual 
consent or consideration, and are obligations created and en¬ 
forced by law in the interests of justice and public policy. 
They resemble contracts in that the duty imposed on the 
obligor is a positive one, to pay over a sum of money. They 
differ radically from torts where the duty is to refrain from 

9 Ford v. Storbridge, Nels., Ch. 288, note 2. 

24. For earliest cases on the sure- 10 See Ames, Hist, of Assumpsit, 

ty’s right of contribution in equity, id., 291, and cases cited. 

see Ames, Hist, of Assumpsit, id., 11 Milton’s Case, 1668, Hard, 485. 


424 


HISTORY OF ENGLISH AND AMERICAN LAW 


wrongful acts which would violate the rights of others good 
against all the world. Though they are not contracts, it is 
natural that they be classed with contracts rather than with 
torts. 

Debt was the proper action to enforce the payment of money 
due by custom or by statute. Slade’s Case, as we have seen, 
required a promise implied in actual fact, a true contract. 
The first case allowing indebitatus assumpsit as concurrent 
with debt in these cases of debts by custom or statute, was 
decided in 1673, seventy years after Slade’s Case. 1 A little 
later an officer of a corporation was held in assumpsit for 
money forfeited under a by-law, on the authority of the pre¬ 
ceding case. 2 An assumpsit against a copyholder to recover 
a customary fine on the lord’s death was sustained in 1688. 3 
Though Lord Holt was opposed to this innovation, 4 it was 
again sustained in 1705 in an action on a foreign judgment. 6 
Of course there was no promise implied in actual fact in these 
cases. The implied promise was a fiction pure and simple, 
used by the courts for the sake of the remedy. 

Most quasi-contracts are based upon the principle that one 
person shall not unjustly enrich himself at the expense of 
another. The action of account was used under the old law to 
compel restitution of money entrusted to another to be applied 
in a specified way; and, if not so applied, the court would 
give judgment that the plaintiff recover the money from him. 
Thus, if the money was to be applied in payment of a debt 
supposed to be due from plaintiff to defendant; upon proof 
that no such debt existed and that the money had been so 
paid by mutual mistake or as a result of the defendant’s fraud, 
the court would give judgment that the plaintiff recover the 

§106. 1 London v. Goree, 2 Lev. 8 Shuttleworth v. Garrett, Comb. 
174. 151, 3 Mod. 240, 3 Lev. 261, s. c. 

2 Barber Surgeons v. Pelson, 4 See Ames, Hist, of Assumpsit, 
(1679), 2 Lev. 252. See Ames, id., 294. 

Hist, of Assumpsit, id., 274. 5 Dupleix v. De Rover, 2 Vern. 

540 . 


DEVELOPMENT OF CONTRACT 


425 


money in the action of account. 6 As debt had for a long 
time been concurrent with account, that action would also lie 
to recover the money. By implying a purely fictitious promise 
to repay the money, as in the cases above discussed involving 
recovery of a debt by custom or statute, indebitatus assumpsit 
became concurrent with debt, and would also lie in these 
cases. This became the action of assumpsit for money had 
and received to recover money paid by mistake. 7 

Gradually this action for money had and received was ex¬ 
tended to other cases where account would not lie, but where 
justice demanded that a stated sum of money in the hands 
of the defendant should be paid to the plaintiff. Thus money 
paid for property where the sale was procured by the fraud 
of the defendant, could be recovered in this action, though 
Lord Holt held in 1696 that the action would not lie. 8 Where 
money was paid the defendant in consideration of his promise 
to do some act, and he refused to perform his contract, though 
the actions of account and debt would not lie, Lord Holt 
allowed an indebitatus assumpsit in 1704. 9 Because account 
and debt would not lie for money obtained through a tort, 
as by a conversion and sale of chattels or by a disseisin and 
renting of land, the courts at first held that indebitatus assump¬ 
sit could not be used in such cases. 10 Two years later this 
position was reversed, the court declaring that this action 
would lie in cases of that kind. 11 Shortly thereafter, assumpsit 
became concurrent with trover in cases where the goods con¬ 
verted had been sold by the defendant. 12 “Finally, under the 


6 Hewer v. Bartholomew, ( 1597 ), 
Cro. Eliz., 614; Ames, Hist, of As¬ 
sumpsit, id., 295. 

7 Bonnel v. Fowke, 2 Sid. 4, 

(1657), according to Professor 

Ames probably the first action of 

this kind; Martin v. Sitwell, (1690), 

1 Show. 156, Holt, 25; Newdigate 

v. Dary, (1692), 1 Ld. Raym., 742; 


Palmer v. Staveley, (1700), 12 Mod. 
510. 

8 Ames, Hist, of Assumpsit, id., 
296, Anon., Comb. 447. 

9 Holmes v. Hall, 6 Mod. 161, 
Holt 36. 

10 Philips v. Thompson, 3 Lev. 
191, (1675). 

11 Arris v. Stukely, 2 Mod. 260. 

12 Jacob v. Allen (1703), 1 Salk. 


426 HISTORY OF ENGLISH AND AMERICAN LAW 


influence of Lord Mansfield, the action was so much encour¬ 
aged that it became almost the universal remedy where a 
defendant had received money which he was ‘obliged by the 
ties of natural justice and equity to refund.’ ” 18 

Thus was developed the modern law of contract and quasi¬ 
contract. Starting with debt and covenant, with no way of 
enforcing contracts not under seal except as grants by the 
action of debt, we find the judges seizing upon assumpsit, 
originally an action on the case for deceit arising out of breach 
of warranty or other contract, and converting it by judicial 
legislation into an action to enforce parol contracts based on 
detriment as the required consideration, whether a quid pro 
quo, or benefit, existed or not, but where no debt existed. 
Next we find the courts extending this new principle to cases 
of debt based on a quid pro quo, making indebitatus assumpsit 
concurrent with debt, and eventually displacing it in actual 
practice as the usual way of enforcing debts. Then followed 
the extension of assumpsit to promises implied in fact where 
no remedy had existed before, giving rise to the common 
counts in assumpsit. Finally we find quasi-contracts enforced 
by assumpsit based on purely fictitious promises implied by 
the courts for the sake of applying this remedy in these cases 
also, the principle of unjust enrichment, essentially equitable 
in its nature, being the basis of these actions. As Professor 
Ames says: “Surely it would be hard to find a better illus¬ 
tration of the flexibility and power of self-development of the 
Common Law.” 14 

§io/. Assumpsit not Allowed for Use and Occupation .— 
The courts refused to allow indebitatus assumpsit to recover 

27, and other cases cited by Pro- 297, citing Moses v. MacFerlan, 2 
lessor Ames, Hist, of Trover, id., Burr 1005, 1012. 

297, note 3. 14 Ames, Hist, of Assumpsit, id., 

18 Ames, Hist, of Assumpsit, id., 298. 


DEVELOPMENT OF CONTRACT 


427 


rent. 1 In the action of debt for rent, wager of law was not 
permitted, as it was in actions of debt for goods sold and 
other debts. 2 On the death of a tenant, the action of debt 
for the rent survived against his executor, which was not true 
in cases of debt on sales or loans. 3 Therefore the more im¬ 
portant reasons for making indebitatus assumpsit concurrent 
with debt did not exist in rent cases. By the time of Charles 
I, special assumpsit was allowed for rent if the tenant expressly 
promised to pay the rent when the lease was made. 4 In case 
of an express promise to pay the reasonable rental value, 
though no fixed sum was stated, assumpsit alone would lie, 5 
since the action of debt required a fixed sum. The Statute 
11 George II, ch. 19, §14, permitted an assumpsit as concur¬ 
rent with debt in all cases where the relation of landlord and 
tenant existed, whether a stated rent was reserved or a quan¬ 
tum meruit was the basis of the action. But the relation of 
landlord and tenant was required. No assumpsit would be 
allowed on a promise implied by law against a trespasser. 
The statute covered the ground, preventing the courts from 
implying a fictitious promise in these cases, though they had 
found no difficulty in implying such promises in quasi-con- 
tractual cases generally. 6 


§108. Consideration in Contract. —Professor Ames in his 
article on the History of Assumpsit has settled beyond doubt 
the questions relating to the history of consideration, which 
before his article were very much in dispute. The history of 


§107. 1 Reade v. Johnson, 1 Leon 
155, Cro. Eliz., 242. 

2 Reade v. Johnson, 1 Leon 155; 
London v. Wood, 12 Mod. 669, 681. 

3 Ames, Hist, of Assumpsit, id., 
300. 

4 Acton v. Symonds, (1634), Cro. 
Car., 414, Rolle, Abr., I, 8, pi. 10. 
This case was followed in the Ex¬ 


chequer in 1664, Trever v. Roberts, 
Hard. 366, and by the Common 
Bench in 1683, Johnson v. May, 3 
Lev. 150. 

8 King v. Stephens, Rolle, Rep., 
II, 435 - 

8 Ames, Hist, of Assumpsit, id., 
302, 303. 


428 HISTORY OF ENGUSH AND AMERICAN LAW 


special assumpsit and of indebitatus assumpsit, as outlined in 
the preceding sections, makes very clear the historical origin 
and development of the doctrine of consideration in the law 
of contract. That doctrine, as usually stated, is that a promise 
to be enforceable at law must be based on a consideration which 
is either a benefit to the promisor or a detriment to the prom¬ 
isee. In those cases where the consideration is a benefit to the 
promisor, we have nothing more or less than the quid pro quo 
of the action of debt, brought into the modern action of con¬ 
tract when indebitatus assumpsit became concurrent with debt 
through Slade’s Case (1603). The consideration supporting 
the assumpsit or promise to pay the debt was, of course, the 
quid pro quo, or substantial benefit to the promisor, for which 
the promise to pay a definite sum was given. It was not, as 
contended by Judge Holmes, 1 a modification of the quid pro 
quo. It was and is the quid pro quo itself. Therefore con¬ 
sideration regarded as a benefit comes directly from the action 
of debt. 2 

Consideration as a detriment grew up entirely independent 
of the doctrine of quid pro quo as the essential basis of the 
action of special assumpsit. It will be recalled that that action 
developed directly from an action on the case for deceit, the 
deceit arising out of the breach of the promise on the faith 
of which money had been paid by the promisee or other 
detriment had been incurred by him. When the notion of 
tort was dropped and the action was recognized for what it 
really was, an action to enforce a parol promise which did not 
create a debt, the requirement of a detriment to the promisee 
continued as it had been before, an essential basis of the action. 
In those cases where the benefit of what was given up went 
to the promisor, it may be urged that the requirement of a 

§108. 1 Holmes, Early Eng. Equi- 2 Ames, Hist, of Assumpsit, in 
ty, in L. Q. R., I, 17 1 • Sel. Essays, Sel. Essays, III, 259, 260, 278. 

II, No. 41; Holmes, Com. Law, 285. 

Langdell, Contracts, §47. 


DEVELOPMENT OF CONTRACT 


429 


benefit to the promisor is satisfied. But it has always been 
quite immaterial since the development of this action whether 
the promisor or a third person received the benefit, so long 
as the promisee incurred a detriment on the faith of the 
promise at the promisor’s request. 8 Since every consideration 
which is a benefit to the promisor moving from the promisee 
must be a detriment to the promisee, it follows that the modern 
doctrine of consideration may best be expressed as a detriment 
to the promisee in all cases, it being quite immaterial whether 
it is a benefit to the promisor or not, provided the detriment 
was incurred at his request. However, the historical devel¬ 
opment of consideration took place in the two distinct forms 
just stated, viz., (1) in the form of a benefit or quid pro quo 
in all cases of debt enforced by indebitatus assumpsit, and 
(2) in the form of a detriment in all cases of special or implied 
assumpsit in which express or implied parol promises were 
enforced where no debt existed because of the lack of a 
promise to pay a fixed sum of money. 

Professor Salmond’s theory that consideration is “a modi¬ 
fication of the Roman principle of causa, adopted by equity, 
and transferred thence into the common law,” 4 is rejected by 
Professor Ames, not only as a necessary result of the true 
genesis of consideration as given by him, but also because his 
examination of consideration in equity proves that it owes 
nothing to the Roman causa, but in fact was adopted by equity 
from the common law. The doctrine of consideration arose 
in equity in connection with uses created by bargain and sale 
and covenants to stand seised. “Two out of three judges 
questioned their validity in 1505, a year after assumpsit was 
definitively established.” 6 Therefore equity was too late to 
have any effect on the doctrine of assumpsit. Bargains and 

a Id. B Ames, Hist, of Assumpsit, id., 

4 Salmond, Hist, of Contract, in 279, citing 21 Henry VIII, 18, pi. 30. 
L. Q. R., HI, 166, 178; Set. Essays, 

III, Essay No. 61. 


HISTORY OF ENGLISH AND AMERICAN LAW 


sales and covenants to stand seised were conveyances in equity 
by means of which the owner retained the legal title and 
transferred the use to the bargainee or covenantee to uses. 
We have seen that the transfer of a chattel by parol gift 
without delivery was void—a quid pro quo, or purchase price, 
paid or agreed to be paid, was necessary to a transfer of the 
title when not transferred by delivery of possession or by deed 
of gift. 6 So a debt created by a promise given for a quid 
pro quo was conceived of and treated at common law as a 
grant of the debt, not as a promise enforceable as such, as 
abundantly appears in the preceding sections. A quid pro quo 
was essential to the validity of the grant. Equity adopted 
the same principle, refusing to give effect to a mere gift of 
a use, enforcing it only where it was supported by a quid pro 
quo, a consideration of value, modifying this in the case of a 
covenant to stand seised by giving effect to it also if given in 
consideration of blood or marriage. 7 

The word “consideration” came into use as a general term 
in all declarations in assumpsit whether the assumpsit de¬ 
pended on a detriment or a debt, soon after the reign of 
Henry VIII, perhaps earlier. 8 

A word should be added with reference to so-called “exe¬ 
cuted” or past consideration. Before Slade’s Case, the new 
promise required in order that indebitatus assumpsit might 
be brought to collect a debt was supported only by the pre¬ 
existing debt, a past consideration. With Slade’s Case this 
disappeared, the original promise being thereafter enforced, 
supported by the quid pro quo, or benefit to the promisor on 
which the debt depended. Before the development of implied 
assumpsit as a remedy for promises implied in fact, the courts 
had held that a later express promise to pay for the goods 
or services furnished or rendered would be enforced, the 

9 See §81, ante. 8 Joscelin v. Sheldon, (i557)» 3 

7 Ames, Hist, of Assumpsit, id., Leon 4, Moore 13. See Ames, Hist. 
279. See §52, ante. of Assumpsit, id., 278, note 1. 


DEVELOPMENT OF CONTRACT 


431 


objection of a past consideration being overcome by the fiction 
of having the promise “relate back” to the original consider¬ 
ation. All need for the later promise disappeared with the 
development of implied assumpsit based on the promise im¬ 
plied in fact in those cases; and subsequent express promises 
acquired thereafter their modern effect as mere evidence of 
reasonable value. The anomalous doctrine of past or executed 
consideration, therefore, gradually disappeared from the law. 9 

What, fundamentally, is back of the doctrine of consider¬ 
ation in contract? That question is not answered by the 
history of the development of assumpsit. The doctrine of 
detriment incurred by the promisee, which is undoubtedly the 
basis of the modern law of consideration in the usual simple 
contracts arising between the immediate parties, came in inci¬ 
dentally, almost casually, in connection with that interesting 
example of judicial legislation by which an assumpsit in an 
action on the case for deceit was converted into a new and 
distinct action to enforce parol promises not creating debts. 
It is easy to see why the detriment was essential to the action 
of deceit in the breach of warranty cases and also in the 
earliest of these cases heretofore discussed in which the breach 
of promise from which the deceit was inferred was something 
like a betrayal of trust by the defendant who was to purchase 
property for the plaintiff but purchased the property for 
another instead. There could be no deceit without damage, 
viz., detriment, to the plaintiff. But damage as an element 
of deceit had nothing to do with the new action of assumpsit 
to enforce parol promises, since the fiction of deceit was soon 
abandoned. Why, fundamentally, was detriment to the prom¬ 
isee essential to the validity of contracts enforceable only by 
assumpsit ? 

We find running through the law from the earliest times 
the principle that mere unexecuted or uncompleted gifts will 

9 See Ames, Hist, of Assumpsit, 3, 4, and 5; Langdell, Contracts, 
id., 288, 289, and cases cited, notes §§92, 93, 94. 


HISTORY OF ENGLISH AND AMERICAN LAW 


not be enforced. Gifts of chattels by mere words without 
delivery were void, as they are to-day. Later they could be 
made by deed of gift, by instrument under seal. Debts, re¬ 
garded as created by grant, were void without a quid pro quo. 
Later they were valid when created by specialty, by instrument 
under seal. Pollock and Maitland say: “We may take it as 
a general principle of ancient German law that the courts will 
not undertake to uphold gratuitous gifts or to enforce gratui¬ 
tous promises. The existence of this principle is shown by 
the efforts that are made to avoid it.” They then give numer¬ 
ous instances of the use of nominal considerations, things of 
trifling value, given and received in connection with various 
kinds of transactions. Every alienation of land involved a 
service of some sort in return. “Every fine levied in the 
King’s Court will expressly show a quid pro quo; . . . and 
this is so, though here the bargain takes the solemnest of 
solemn forms. We may doubt whether in the thirteenth 
century a purely gratuitous promise, though made in a sealed 
instrument, would have been enforced if its gratuitous char¬ 
acter had stood openly revealed. We are not contending that 
the principle had as yet been formulated. It is long before 
men formulate general negations of this kind. . . . Still we 
think that all along there is a strong feeling that, whatever 
promises the law may enforce, purely gratuitous promises are 
not and ought not to be enforceable.” 10 

We know, however, that contracts under seal became en¬ 
forceable thereafter without requiring any consideration, just 
as a deed of gift under seal became effective to transfer title 
to chattels. But deeds and specialties aside, unexecuted gra¬ 
tuitous transactions of all kinds were void. This was why 
a quid pro quo was necessary to the validity of debts, why 
delivery or a quid pro quo was essential to gifts or transfers 
of chattels, why valuable consideration or consideration of 


10 Poll. & Mait., II, 211, 212. 


DEVELOPMENT OF CONTRACT 


433 


blood or marriage was necessary to uses in equity created by 
bargain and sale and covenant to stand seised. This, of 
course, continued to be the reason why consideration in the 
form of benefit to the promisor, the quid pro quo of debt, 
continued to be necessary in cases of contract enforced by 
indebitatus assumpsit. It would seem to follow that this is 
the fundamental reason why detriment was required in actions 
of special assumpsit. If the plaintiff has given up or paid 
over something or suffered other detriment in consideration 
of the promise of the defendant, the promise is not gratuitous. 
The detriment makes it a promise which the law must deal 
with and enforce. 

§iop. Third Parties as Beneficiaries in Contract. —This 
matter of consideration is important in considering the mod¬ 
ern cases in which a third party as beneficiary, not a party 
to the contract, and a stranger to the consideration, has been 
permitted to enforce the contract against the promisor; and 
this general principle of the law above discussed, going back 
to earliest times, is the principle by which courts have been 
guided in limiting the enforcement of these promises. 

The English and some of the American courts and many 
of the ablest of our jurists and teachers of law have rejected 
the right of the beneficiary to sue in any case, on the ground 
that, to maintain assumpsit, the consideration must move from 
the plaintiff or the detriment must be incurred by him, and 
frequently on the further ground that the beneficiary is a 
stranger to the contract. By limiting themselves narrowly 
to the rules governing assumpsit in cases of simple contract 
between the immediate parties, they find, of course, that a 
third party as beneficiary is not provided for by those rules, 
and so they exclude him, without regard to the question of 
whether justice and public policy require that he be given 
the right to enforce the contract or not. They seem to have 
forgotten the power of the common law through the courts 


29 


434 


HISTORY OF ENGLISH AND AMERICAN LAW 


to meet a new situation with new law when justice and 
expediency require it, illustrated with particular clearness in 
the development of assumpsit, as Professor Ames has pointed 
out. 

In New York and most of the other states, the beneficiary 
is permitted to enforce the contract when two requisites co¬ 
exist, viz., (i) when the contract was made for his benefit, 
in the sense that the parties intended that he should have the 
right to enforce it, and (2) when a debt, duty, or other obli¬ 
gation is owing from the person securing the promise to the 
third person for whose benefit the promise is secured. Where 
no such duty or obligation exists, apart from life insurance 
cases hereafter referred to, the promise for the benefit of the 
third party is a mere gratuity as far as the beneficiary is con¬ 
cerned, which the law will not enforce, in accordance with 
the broad principle of the law which we have found is the 
fundamental basis of consideration in contract. Why should 
not the courts enforce a promise made for the benefit of a 
third person in the regular course of business as a business 
transaction in accordance with the intent of the parties ? The 
fundamental reason for enforcing the usual simple contract 
between the immediate parties is that the parties so intended; 
and justice, public policy, and the interests of business demand 
that their intent should be enforced when the contract is not 
a mere gratuity. So in these cases of beneficiaries, justice 
and public policy and the interests of commerce demand that, 
for instance, when a purchaser of land assumes a mortgage 
debt thereon, the mortgagee should have the right to hold 
him on his covenant of assumption, as both he and his grantor 
intended. The grantor arranges in this way for the payment 
of the mortgage debt, a perfectly valid business transaction; 
and giving to the mortgagee the right to enforce it is not a 
gratuity. It is part of a valid business transaction which the 
law is bound to recognize and enforce. Arguments which 
attempt to bring these cases within the limits of assumpsit 


DEVELOPMENT OF CONTRACT 


435 


simply shoot wide of the mark. A new situation exists and 
relief is demanded exactly for the same reasons that relief 
was demanded in the enforcement of simple consensual con¬ 
tracts when the courts developed assumpsit. Within the limits 
laid down by the New York courts, the giving of an action 
to the beneficiary is strictly within the fundamental principles 
of contract, and the refusal to allow the action in England 
and some of the states is merely another illustration of the 
narrowness and pedantry by which the courts have so fre¬ 
quently failed to apply broad principles because the case did 
not fit within the prescribed limits of some existing form of 
action, though governed by the same principles and demand¬ 
ing relief for the same fundamental reasons. 1 

That the courts will enforce contracts made in favor of 
third persons in cases where the immediate parties to the 


§109. 1 Prof. Hening, in an ar¬ 

ticle entitled “History of the Bene¬ 
ficiary’s Action in Assumpsit,” 
American Law Register, (now 
Penn. Univ. Law Rev.), XLIII, 
764-779, and reprinted in Sel. Es¬ 
says, III, 339, points out that the 
beneficiary had under the old law 
an action of account, and that 
eventually the action of debt be¬ 
came concurrent with account, 
where money was received from 
any other person by the defendant 
for the benefit of the beneficiary, 
and that consideration moving from 
the beneficiary was never required, 
as consideration was not an element 
in the action of account. We know 
that this jurisdiction in account was 
taken over by equity, the defendant 
being compelled to account under 
an implied or constructive trust, 
and that it had no influence of im¬ 
portance upon the law of contract. 
The connection between the absence 


of the rules of consideration in 
these cases and the modern cases of 
beneficiaries’ rights under executory 
contracts where no question of ac¬ 
counting is involved is not clear. 

Professor Williston in an article, 
“Contracts for the Benefit of a 
Third Person,” Harv. L. Rev., XV, 
771, states that “The rule that con¬ 
sideration must move from the 
promise is somewhat technical, and 
in a developed system of contract 
law there seems no good reason 
why A should not be able for a 
consideration received from B to 
make an effective promise to C." 
He, however, takes the position that 
the beneficiary cannot maintain an 
action on the contract because he 
is not a party to it “apart from 
some special principle governing 
this class of cases.” See Professor 
Williston’s article for a discussion 
of the cases bearing on this ques¬ 
tion. 


436 HISTORY OF ENGUSH AND AMERICAN LAW 


contract intended that they should be enforced in that way, 
is established by the cases of warranties of title in deeds and 
covenants or agreements running with the land and confer¬ 
ring benefits upon the land conveyed. In these cases, as we 
have seen heretofore, 2 the only reason on which the right of 
subsequent owners of the land affected to enforce such cove¬ 
nants can be based is that the original parties intended that 
they should be so enforced; and justice and expediency de¬ 
mand that their intent be given effect. Furthermore, in these 
cases, enforcement by the immediate promisee would usually 
be a mere form resulting in the recovery of nominal damages. 
The only real enforcement of the contract can be made by 
the third party or beneficiary. In cases where the promisee 
secures the promise from the promisor in order to discharge 
a debt due from him to the third party, it is true that he may 
recover the full amount from the promisor after he has him¬ 
self discharged the debt; but, under the cases, this recovery 
is on the theory that he as surety has paid the debt due 
primarily from the promisor because of his promise, not for 
breach of the contract made with him by the promisor. Even 
if the promisor would be, by possibility, subject to two actions 
for the same breach, there is no valid objection to enforce¬ 
ment by the beneficiary, it being the intent of both promisor 
and promisee that the beneficiary should have the right to 
enforce the promise. 

Life insurance policies for the benefit of third parties as 
beneficiaries are enforceable by the beneficiaries everywhere, 
that result being reached in England by statute. Such a 
promise is not a mere gratuity, apart from the consideration 
from insured to insurer. It is a perfectly valid business trans¬ 
action which the parties intend shall be enforceable by the 
beneficiary; and the courts are bound to recognize and carry 
out their intent. Promises to be enforced by a beneficiary 


2 See §76, ante. 


DEVELOPMENT OF CONTRACT 


437 


where no debt or fixed obligation to him from the promisee 
exists other than a duty to support or the like, as between 
husband and wife or parent and child, may generally be en¬ 
forced for a like reason. The promise, being supported by a 
valid consideration given by the promisee, will be enforced 
in favor of the beneficiary as the parties intended, the duty 
of support making the obtaining of the promise an act which 
is not mere meddling by an outsider, but a proper business 
transaction in discharge of a legal duty, which ought not to 
be ignored by the law. 8 


§110. Sales .—It follows from what has gone before that, 
prior to assumpsit, sales were enforceable only by debt or 
covenant; that a purely executory contract of sale could not 
be enforced unless made in writing under seal. In the time 
of Glanville and Bracton, a sale binding at law could be made 
only by delivery of the thing sold, payment of the purchase 
price in whole or in part, or giving of earnest. 1 The giving 
of earnest was not the same thing as part payment. In Glan- 
ville’s time, it served merely to bind the vendor, who could not 
withdraw from the bargain; but the purchaser, by forfeiting 
the earnest he had given, could refuse to take the goods. 3 
By the law of merchants, earnest became a form binding both 
parties to the contract, and this was expressly declared in the 
Carta Mercatoria of Edward I. Later it became part of the 
common law. 8 

Title to the purchased goods did not pass until delivery, 
even though the price had been paid. 4 Where the goods were 


8 See Professor Williston’s ar¬ 
ticle, referred to supra, for a full 
discussion of the different classes 
of cases in which the beneficiary’s 
right is enforced. The purpose here 
is merely to suggest a possible his¬ 
torical basis for this doctrine, not 
to discuss its different applications. 


§iio. 1 Glanv., lib. X, cap. 14; 
Bracton, f. 61b. 

2 Poll. & Mait., II, 206. 

3 Noy, Maxims, ch. 42; Poll. & 
Mait., II, 207. 

4 Glanv., lib. X, cap. 14; Brac¬ 
ton, f. 62; Poll. & Mait., II, 208. 


438 HISTORY OF ENGLISH AND AMERICAN LAW 


delivered, their transfer was the quid pro quo which gave the 
vendor his action of debt for the purchase price. If the pur¬ 
chase price was paid, that fact constituted the quid pro quo 
which gave the vendee the right to maintain detinue for the 
goods, a contractual right, however, not yet amounting to 
ownership of the goods. The court held (Y.B. 21 Edward 
III, 12-2) that the delivery of a sealed obligation for the 
purchase price was a quid pro quo equivalent to payment of 
the purchase price, permitting the action of detinue to recover 
the goods. The next step, a radical one as Professor Ames 
points out, was to allow detinue where there was a parol 
promise to pay the purchase price, without any actual pay¬ 
ment or giving of a specialty. Fortescue, C. J., said in Y.B. 
20 Henry VI, 35-4, “If I buy a horse of you, the property 
is straightway in me, and for this you shall have a writ of 
Debt for the money, and I shall have Detinue for the horse 
on this bargain.” This has every appearance of a purely 
executory bilateral contract good over a century before bi¬ 
lateral executory parol contracts were made enforceable by 
assumpsit. But the court did not have in mind the enforcing 
of mutual promises. What was involved were mutual grants, 
the grant of the right to the goods in return for the grant of 
the debt, the one being the quid pro quo of the other. 6 

The development of assumpsit made such contracts enforce¬ 
able as mutual promises, the one being consideration for the 
other. Whether title passed at the time of the making of 


6 Ames, Parol Contracts, in Set. 
Essays, III, 312, 313. 

There is very good reason for 
believing that the idea of owner¬ 
ship in the vendee before delivery, 
in other words of an executed sale 
in the modern sense, was back of 
this law permitting detinue. Deti¬ 
nue had, prior to this time, devel¬ 
oped into an action in retn, as dis¬ 
tinguished from an action ex con¬ 


tractu, since it could be brought 
against any possessor of a chattel 
which had been bailed as well as 
against the bailee in cases of bail¬ 
ment, and therefore it was an action 
to enforce the plaintiff’s rights as 
owner rather than an action based 
on a promise to return or to deliver 
the goods. See Ames, Hist, of 
Trover, in Sel. Essays, III, 435. 


DEVELOPMENT OF CONTRACT 


439 


the contract or thereafter on delivery of the goods, became a 
question of intent, title passing at once or upon delivery 
according to the expressed intention of the parties. The pre¬ 
sumption clearly was that title was intended to pass on the 
making of the contract, unless the intent that title should 
pass only on delivery was expressed in some definite way. 8 
This expresses the modern rule that title passes on the making 
of the contract in the absence of an expressed intent that title 
shall pass on delivery, the first case being a sale, the second 
an executory contract to sell. 

The application of the Statute of Frauds to sales, and the 
various warranties, express or implied, that arise in connection 
with sales, need not be treated here, as these matters are part 
of the modem law covered in the usual textbooks on sales. 


§ii i. Agency .—The development of the theory of repre¬ 
sentation has been discussed in a preceding chapter in tracing 
the development of the principal’s liability for the torts of his 
agents or servants. 1 In the thirteenth century, agency is 
found in representatives of the king authorized to borrow 
money in his behalf, and in formal appointments of attorneys 
to represent their principals in certain formal acts, as to 
deliver and receive seisin. 2 Apparently the beginning of parol 
or implied agency is to be found in a case in Bracton’s Note 
Book, in which the plaintiff claimed a wardship sold to him 
by the defendant’s steward, and a case in Edward I’s reign 
in which an abbot was sued for the price of goods purchased 
by a monk for the convent. 3 It is clear that agency at that 
time, except in public and formal matters, was at its very 
beginning in the law. 


• In Cochrane v. Moore, L. R. 25, 
Q. B. D. 57, the court said that the 
point was thought to be at least 
open to argument as late as Eliza¬ 
beth’s reign. “(See Plowd. 11b, and 
a learned note, 2 Man. & Ry. 566).“ 


§iij. 1 See §95, ante. 

2 Poll. & Mait., II, 225; Bracton, 
f. 40. 

3 Bracton’s Note Book, pi. 873; 
Y.B. 33-5 Edward I, 567; Poll. & 
Mait., II, 225, note 6, and 226, note 1. 


440 


HISTORY OF ENGLISH AND AMERICAN LAW 


In cases of contract, as in tort, there never was any difficulty 
in finding the reason on which the principal’s responsibility 
or obligation depended when the agent acted in accordance 
with the powers given him, either expressly or ostensibly, so 
that third parties had the right reasonably to rely on apparent 
powers arising from the words or acts of the principal. It 
was always plain common sense that the principal should be 
bound in those cases. 4 

The doctrine that contracts made by an agent acting for 
an undisclosed principal are the contracts of that principal 
and may be enforced by and against him, is explained by 
Judge Holmes, as he explains the master’s liability for his 
servant’s torts committed within the general scope of his em¬ 
ployment, by the fiction of identity carried down from the 
ancient law of Saxon times by which the slave was identified 
with his master. 5 This explanation, as we have seen, cannot 
be accepted as the basis of the master’s liability in those cases, 
not only because there is a gap of centuries between them 
which is not explained historically, which gap is very strong 
evidence that the old notion of the master’s identity with his 
slaves had disappeared, so that it could have had no effect in 
creating the modern rule, but also because the idea is archaic, 
repugnant in every sense to modern thought.* For the same 
reasons, it must be rejected as an explanation of the doctrine 
of undisclosed principal. In a case decided in the reign of 


4 Judge Holmes in his History of 
Agency, in Sel. Essays, III, 391, 
cites early illustrations of the ap¬ 
plication of this principle. Thus in 
Y.B. 8 Henry V, 4, pi. 17, a lease 
made by a seneschal of a prior, it 
was held should be alleged as the 
lease of the prior, and a little later, 
an assumpsit to a servant for his 
master was held to be properly laid 
as an assumpsit to his master. 


Seignior and Wolmar’s Case, God- 
bolt, 360, (James I). Popham, 178, 
179, thus abridges a discussion in 
Y.B. 8 Edward IV: “My servant 
makes a contract, or buys goods to 
my use; I am liable and it is my 
act.” 

5 Holmes, History of Agency, id., 
391-395. 

6 See §95, ante. 


DEVELOPMENT OF CONTRACT 


441 


George II, 7 this doctrine is laid down as one which is well 
known; and that it was accepted law in Lord Holt’s time 
seems to be shown by a case in Anne’s reign, 8 in which it 
was asserted that the debt for goods sold in such case was 
due to the undisclosed principal, not to the agent who had 
concealed his agency in making the sale. This doctrine was 
undoubtedly a development of the law of contract coming 
directly from the action of debt. The debt was due to the 
undisclosed principal who furnished the quid pro quo on which 
it was based, not to his agent. This principle was extended 
to all contracts, the contract being really between the undis¬ 
closed principal and the third party, not between him and the 
agent. The difficulty in explaining the rule arises out of the 
fundamental nature of the contract in these cases, and the 
fiction of identity based on the ancient rule as to slaves would 
not be a real explanation even if any historical connection with 
the ancient doctrine were shown. Judge Holmes and others 
assume that the doctrine of undisclosed principal is anomalous 
because they claim there is no meeting of the minds, that it 
is not possible to make the third party liable in contract to 
the undisclosed principal when he intends to become liable 
only to the agent. But the minds of the parties do actually 
meet because the agent acts for the principal in making the 
contract. It is the principal’s contract, not the agent’s. The 
agent may be held liable on the contract at the third party’s 
election, not because he is really a party to it, but because he 
is estopped from denying that the contract is his, due to his 
false representation that he was the principal. The fact of 
the matter is that the third party is mistaken as to the identity 
of the other party to the contract, due to the agent’s express 
or implied false representation. No hardship is done him; 
for he has the right to hold the agent instead of the principal 

1 Scrimshire v. Alderton, 2 referred to in Scott v. Surman, 
Strangs, 1182 (H. 16 Geo. II). Willes, 400, at p. 405. also reported 

8 Gurratt v. Cullum, (T. 9 Anne), in Buller, N. P., 42. 


442 


HISTORY OF ENGLISH AND AMERICAN LAW 


if he elects to do so. When the contract is enforced against 
him by the principal, he is fully protected, because he has the 
right to set up any defences, offsets, or counterclaims which 
he could have set up against the agent, these rights arising 
through estoppel of the principal. Furthermore, the situation 
is the same as if the agent, having made the contract as prin¬ 
cipal without authority from the third party, subsequently 
assigned his rights under the contract to the third party. 
That is why the agent’s false representation does not amount 
to fraud on which the third party may rescind. There is no 
injury to the third party other than a possible injury to his 
sensibilities in being led into doing business with a person lie 
may not like, a kind of damage which the law disregards. 
The law is well settled that a true contract, involving an actual 
meeting of the minds, exists between the third party and the 
undisclosed principal, the same principle applying and being 
fully sustained in cases involving the liability of dormant part¬ 
ners on firm contracts. The common sense of the matter 
explains this doctrine, as it does the more usual contracts 
made by agents acting openly as such. 


CHAPTER XIX 


DEVELOPMENT OF COMMERCIAL LAW 

§112. The Law Merchant .—One reason why the law of 
contract lagged so far behind in its development was that 
merchants, shippers, and traders had a special law of their 
own administered in special courts for them alone. This was 
true up to the beginning of the seventeenth century. The 
law of bills and notes, of partnerships and joint-stock associ¬ 
ations, of insurance, of charter parties and bills of lading, in 
short, the entire law of commerce, was administered in these 
special courts for the benefit of persons engaged in commercial 
enterprises, and not confined to England, but extending to 
all nations taking an active part in the trade and commerce 
of the world. This law, the law merchant, was therefore a 
law of nations in which the prevailing customs of merchants 
throughout the commercial world were recognized and en¬ 
forced. The same law, with the same kinds of special courts 
and procedure, was administered and enforced in France, Italy, 
Spain, and the other trading nations, as in England, for the 
benefit of all merchants and traders, irrespective of their 
nationality. This law took care of the controversies arising 
in connection with business, so that very few questions of this 
nature arose in the regular courts prior to the seventeenth 
century. 1 

These special courts were, first, the courts of the great fairs 
in which most of the commercial business of England and 
the other principal trading nations was done, called courts 
“pepoudrous” because justice was done in them as speedily 
“as the dust can fall from the foot, the proceedings then being 

§112. 1 Scrutton, General Survey chant, in Sel. Essays, III, 7-9. 
of the History of the Law Mer- 


444 


HISTORY OF ENGLISH AND AMERICAN LAW 


de hora in horam,” as Coke put it. 2 * Their purpose was “to 
do justice expeditiously among the variety of persons that 
resort from distant places to a fair or market.” 8 In 1353, 
another class of courts was created by the Statute of the 
Staple, one of its main purposes being to give additional 
relief to merchants, and providing in express terms for the 
administration of the law merchant in those courts. 4 

The Admiral’s Court was a special court of the same nature 
in which questions arising on maritime contracts and ques¬ 
tions relating to ships and shipping were determined according 
to the law merchant. 5 This was the forerunner of admiralty 
law of the present day. 

Staple courts disappeared in the seventeenth century be¬ 
cause of the decline of trade through the Staple; 6 * the courts 
pepoudrous were also dying out, besides being held in check 
by review of the judges of the common law courts who did 
what they could to destroy them by limiting their jurisdiction 
and getting legal business away from them. While this 
process of decay of the merchant’s courts was in progress in 
the seventeenth century, commercial cases were of necessity 
brought into the common law courts. The judges treated 
the law merchant like foreign law to be proved in each case 
as a matter of fact, though, as we shall see in the following 
section, negotiable instruments were received into the common 
law in Anne’s reign. This prevented the incorporation of the 
law merchant as part of the common law until Lord Mansfield 
became Lord Chief Justice in 1756/ In commercial cases, 
Lord Mansfield was in the habit of finding out what the gen- 


2 Coke, Inst., IV, 272. 

8 Bl., Comm., Ill, 33. 

4 27 Edward III, St. 2. Burdick, 

Law Merchant, in Sel. Essays, III, 
37 , 38 . 

6 Prynne, Animadversions, 83, 95, 

96, 102; Burdick, Law Merchant, in 

Sel. Essays, III, 43. 


8 See Brodhurst, The Staple, in 
Sel. Essays, III, 31-33. 

T See Scrutton, General Survey, 
in Sel. Essays, III, 13; and Burdick, 
Law Merchant, in Sel. Essays, III, 
43 . 44 - 


DEVELOPMENT OF COMMERCIAL LAW 


445 


erally accepted custom of merchants was through special juries 
of merchants familiar with the customs involved, and on being 
satisfied as to the general custom as part of the law merchant, 
he made it part of the common law by recognizing it as the 
law of the land. 8 This process has gone on since his time, 
so that the law merchant today is part of the common law, 
retaining, however, its character as law common to all nations 
as before. Illustrations of this final incorporation of the law 
merchant with the common law will appear in the sections 
that follow dealing with the development of various branches 
of the law merchant. 


§113. Development of Negotiable Instruments. —Bills of 
exchange in substantially their modern form were recognized 
and enforced by the law merchant of Europe before the begin¬ 
ning of the fifteenth century. 1 At first, bills of exchange 
were enforceable in England under the law merchant in those 
cases only in which one of the parties to the bill was a foreign 
merchant. 2 The first English work on the Law Merchant, 
the Lex Mercatoria by Malynes, though fully recognizing 
foreign bills and promissory notes, contains no reference to 
inland bills, and probably they were not recognized at the 
date of that work, 1622. Marius, in the preface to the second 
edition of his Advice concerning Bills of Exchange, states that 
he had been twenty-four years a notary public, and in the 
practice of protesting “inland instruments and outland instru¬ 
ments.” He speaks of an inland or domestic bill as “in all 


8 Burdick, Law Merchant, id., 45- 
48. 

§113. 1 Jenks, Early Hist, of Neg. 
Instr., in Sel. Essays, III, 53-58. 

2 Cranch, Promissory Notes, in 
Sel. Essays, III, 78, citing Malynes, 
Lex Mercatoria (1622) ; Bromwick 
v. Loyd, 2 Lutw. 1585, Chief Jus¬ 
tice Treby saying: "that bills of 


exchange at first were extended 
only to merchant strangers, trading 
with English merchants; and after¬ 
wards, to inland bills between mer¬ 
chants trading one with another 
here in England; and after that, to 
all traders and dealers, and of late, 
to all persons, trading or not.” 


446 HISTORY OF ENGLISH AND AMERICAN LAW 


things as effective and binding as any bill of exchange made 
beyond seas.” This second edition was published about 1670; 
and, as Marius refers to inland bills as in use twenty-four 
years earlier, or in 1646, we can reasonably infer that they 
came into use in England as part of the law merchant between 
1622 and 1646. As Judge Cranch says, “It is certain, that 
promissory notes were in use upon the continent, in those 
commercial cities and towns with which England carried on 
the greatest trade, long before that period; and were nego¬ 
tiable under the custom of merchants, in the countries from 
whence England adopted the greater part of her commercial 
law.” 3 Malynes describes them and gives forms substan¬ 
tially like the modern promissory note, 4 which indicates that 
they had been recognized under the law merchant some time 
before inland or domestic bills of exchange. 5 

Inland bills and promissory notes came into general use in 
England about 1665 or 1666, in connection with a sudden 
increase of paper credit brought about by the development of 
a banking business by the goldsmiths about that time. 6 No 
distinction was made in the cases between them. They were 
both referred to sometimes as bills, sometimes as notes, some¬ 
times as “bills or notes.” They were not distinguished the 
one from the other, therefore, even by name. 

The first reported case in which an inland bill was enforced, 
was decided in 1663. The payee declared on the custom of 
merchants. It was moved in arrest of judgment that neither 
the drawer nor the payee was a merchant, but the declaration 
was held good since the drawer was a merchant. 7 In 1680, 


3 Cranch, Promissory Notes, in 
Sel. Essays, III, 79. 

4 Lex Mercatoria, 71, 72; Cranch, 

id., 79, 80. 

6 Judge Cranch cites a case in 
Godbolt, 49 Mich. 28, and 29 Eliz. 

(1586), which was probably an ac¬ 
tion on a promissory note. Cranch, 


Promissory Notes, in Sel. Essays, 
III, 80. 

6 See account of the origin of 
this banking business by the gold¬ 
smiths in Judge Cranch’s essay, in 
Sel. Essays, III, 81, 82. 

7 Edgar v. Chut, 1 Keb. 592, 636 
(Mich., Car. II). 


DEVELOPMENT OF COMMERCIAL LAW 


447 


a note under seal payable to bearer was enforced, the court 
referring to the case of a merchant’s note payable to bearer 
as a similar case involving well settled law. In such case, 
“anyone that brings the note shall be paid.” The case of 
Williams v. Williams, 8 decided in 1692, finally removed all 
doubts that promissory notes were enforceable as negotiable 
instruments under the custom of merchants, the court holding 
that it was unnecessary to allege a special custom, “that the 
custom of merchants concerning bills of exchange is part of 
the common law, of which the judges will take notice ex- 
officio.” The plaintiff, who was second endorsee of the note, 
recovered judgment against the first indorser; and that judg¬ 
ment was affirmed on appeal by the exchequer chamber. 

Though the law was, therefore, apparently settled that in¬ 
land or domestic bills and notes were enforceable as part of 
the law merchant, accepted without proof of special custom 
as part of the common law, there being no decision or dictum 
to the contrary, Lord Holt decided, in Clerke v. Martin, 9 in 
the first year of Anne’s reign, that promissory notes could 
not be enforced under the law merchant, the proper remedy 
being assumpsit for money lent. This case was followed by 
four other cases to the same effect. The result of these reac¬ 
tionary decisions was the enactment of the Statute 3 and 4 
Anne, ch. 9, which provided that the same actions under the 
law merchant could be maintained on promissory notes as 
upon inland bills of exchange against the maker and indorsers. 
The recital of the preamble of the statute to the effect that 
“it had been held” that notes, etc., payable to order “were not 
assignable or indorsable over within the custom of merchants,” 
shows clearly that the occasion of the statute arose from Lord 
Holt’s position, and that its purpose was to restore the law 
as it was before these cases last above referred to were decided 
through the personal influence and power of Lord Holt. It 

8 Pasch., 5 W. & M. Carth. 269. 9 Pasch., 1 Anne B. R., 2 Ld. 

Raym. 757; r Salk. 129. 


448 HISTORY OF ENGLISH AND AMERICAN LAW 


has always been obvious that Lord Holt’s position was not 
sound. As we have seen, promissory notes had been in use, 
recognized under the law merchant probably from an earlier 
time than inland bills of exchange. The reasons for sustain¬ 
ing their negotiability were exactly the same as in the case 
of inland bills, and their negotiable character under the law 
merchant had been established by the same evidence, and they 
were so held for the most part by the same cases which ad¬ 
mitted inland bills within the custom of merchants. At any 
rate, the Statute of Anne removed all question, and bills and 
notes, foreign and domestic, enforceable as negotiable instru¬ 
ments under the law merchant, were brought within the com¬ 
mon law, the rules of negotiability required by commerce being 
forced upon the courts through the pressure of the public need, 
in spite of the opposition of Lord Holt in the case of promis¬ 
sory notes. 

It appears, therefore, that the law before the statute was 
the same as the law laid down by the statute, the cases of 
promissory notes decided by Lord Holt to the contrary having 
been bad law, opposed to controlling precedent, as well as to 
principle and reason. Therefore in those states of the United 
States in which the Statute of Anne is not law, the common 
law rule prevailing is the same as under the statute, since the 
effect of the statute was merely to remove the doubt as to the 
law created by Lord Holt’s decisions. 10 

The principle of negotiability applied by the law merchant 
to bills and notes and carried into the common law as described 
above, was a very radical innovation, a complete departure 
from the common law rules governing the assignment of 
choses in action. We have outlined the history of the assign- 
ability of choses in action in the chapter treating of the devel¬ 
opment of the law of personal property. 11 It will be recalled 
that rights of action in contract other than bills and notes 

10 Cranch, Promissory Notes, in 11 See §82, ante. 

Set. Essays, III, 89-97. 


DEVELOPMENT OF COMMERCIAL LAW 


449 


were eventually made assignable by use of the device of a 
power to collect or enforce the claim given to the assignee, 
who was forced to sue in the assignor’s name, though collect¬ 
ing for himself as the real owner, and how under the modern 
law he now sues in his own name in most jurisdictions. The 
force of the old notion which refused to treat a chose in action 
as property for the purposes of transfer, has been so great 
that it still continues to be the law that title to the chose does 
not pass to the assignee, though he alone can sue on it, and 
he must sue in his own name, and the amount recovered is 
his absolutely. The assignee is undoubtedly the real owner 
of the chose, and the legal title of the assignor has become a 
mere abstraction, a fiction the only practical result of which 
is to prevent in equity the application of the doctrine of pur¬ 
chaser for value without notice to transfers of non-negotiable 
choses in action, the legal title not passing. In other words, 
the assignee in such case, not getting the legal title as he 
does if a chattel or a negotiable bill or note is transferred to 
him, does not take free of prior equities if a purchaser for 
value without notice, as he does in the other cases where the 
legal title passes to him. The transfer of bills and notes as 
equivalent to money, free of such defences, title passing as 
it would to money as a medium of exchange, was essential 
to the development of commerce, at first between different 
countries, and later within the limits of a single state. It 
was this need which forced the principle of negotiability, with 
its attendant rules of indorsement and liability of indorsers, 
upon the common law. 

§114. Partnerships .—We find two kinds of partnerships 
existing during the Middle Ages throughout the countries of 
Europe in which the law merchant prevailed, 1st, the “com- 
menda,” with capital contributed by one of the parties who 
took no active part in the business, the active management of 
which was in the hands of the other party, and 2nd, the 


30 


450 


HISTORY OF ENGLISH AND AMERICAN LAW 


“campagnia,” or “societas,” in which the partners each con¬ 
tributed the capital and took an active part in the business. 
In the first class (which expanded so as to include several 
investing partners taking no active part, their capital being 
intrusted to the active or managing partners), the investing 
partners were not liable beyond the amount contributed by 
them for debts of the firm, the active partners being fully 
liable for all such debts. 1 In the second class, each partner 
was individually liable for all the debts of the firm, though 
this principle was not fully settled until the sixteenth century. 2 
The names of all the partners did not appear in the firm name, 
the words “et socii” or equivalent words being used to indi¬ 
cate those whose names did not appear. Registration of part¬ 
ners with guilds and with city authorities became common 
after the fourteenth century, that the actual membership of 
trading firms might be known to the public. 3 

At first, one partner was able to bind his copartners only 
when expressly authorized, or where the transaction in ques¬ 
tion was in fact for the firm’s benefit as shown by entries in 
its books, or the use of the goods or money involved in its 
regular business. This was the rule in the fourteenth cen¬ 
tury ; 4 but, as the custom of giving each partner full power 
to bind all the other members by express provision of con¬ 
tracts of partnership became more and more general, the 
modern rule that each partner has full power to bind the 
others in all matters coming within the limits of the firm’s 
business gained ground, though opposed by the jurists and 


§114. 1 Mitchell, Early Forms of 
Partnership, in Sel. Essays, III, 
183-186, and authorities there cited. 

2 Mitchell, Partnership, id., 190, 
191. Such unlimited liability was 
often expressly provided for be¬ 
tween the partners, and in many 


places was accepted law. Gold¬ 
schmidt, 284, 285, 288. 

3 Mitchell, id., 187, 188; Lattes, 
162, and note 68. 

4 Mitchell, id., 188, 189, citing 
Stat. of Calimala, 1301, lib. ii, rubic 
19; Goldschmidt, 281, note 154 


DEVELOPMENT OF COMMERCIAL LAW 


451 

by some of the decisions. By the seventeenth century, this 
doctrine was fully established. 5 

The law of partnership was, of course, part of the law 
merchant. The right to an account between partners for 
property of the firm, and the right to a similar accounting 
for firm property between the representative of a deceased 
partner and the surviving partner or partners, differed entirely 
from the common law rules applying to joint ownership of 
such property. At common law, no account could be had 
between joint owners of chattels or land; and, on the death 
of one of them, the property passed absolutely to the survivor 
by the doctrine of survivorship. Jurisdiction over partner¬ 
ship was taken over almost entirely by equity, which adopted 
and applied the principles of the law merchant. Therefore 
it was held that the doctrine of survivorship did not apply to 
partnership property, the law merchant, as stated above, apply¬ 
ing; and that account would lie as to firm chattels between 
partners, because the partnership relation was governed by 
the law merchant, not by the common law. 6 These instances 
illustrate how the law of partnership was taken over by equity 
from the law merchant. 

The modern law of partnership is merely the development 
of the law merchant which has been made by equity in devel¬ 
oping and expanding its jurisdiction over the partnership 
relation. The law has, broadly speaking, adopted the equity 
view of the nature of a firm, and has taken over bodily all or 
nearly all the rules of equity applying to partnership. Such 
attempts as were made by the common law judges to work 
out rights of partners and of firm creditors on the basis of 
a partnership’s being an association of individuals merely, with 

8 Goldschmidt, 282, note 155; De Vern. 217; Zouch, Jurisdiction of 
Luca, De Camb., disc. 29, nos. 3, 4, Admiralty, 128, quoting from Davis, 
quoted by Goldschmidt 283. Impositions; Bigelow, Sel. Essays, 

8 Hammond v. Jethro, 9 Brownl. Ill, 48. 

99, note i ; Jeffreys v. Small, 1 


45 2 


HISTORY OF ENGLISH AND AMERICAN LAW 


property rights in the individual partners rather than in the 
firm as an entity, seem for the most part to have been aban¬ 
doned ; and the law now generally prevailing is that the rights 
of all involved must be worked out by treating the property 
of the firm as belonging to the firm as an entity, the interest 
of each partner being a mere right or chose in action of 
accounting. All of this constitutes the modern law of part¬ 
nership, which has developed almost entirely in modern times, 
though the basic principles go back, as we have seen, to the 
early Middle Ages and the law of merchants. 

§113. Early Corporations .—The corporate idea, that is, 
of a legal fictitious person made up of actual persons but 
having a distinct and separate existence from them, is very 
old. We find corporations early in the Roman law, at first 
in the form of municipal corporations, cities, towns, villages, 
and colonies, the corporate principle being extended later to 
many other cases, including business associations, corporations 
of blacksmiths, bakers, boatmen, and other classes of artisans, 
corresponding to the guilds of later times. There were also 
the societates, combinations of individuals carrying on busi¬ 
ness together, generally partnerships rather than corporations, 
but some of them were incorporated under the law, including 
associations for working mines, salt works, and for collecting 
taxes. 1 These private business corporations were not suffi¬ 
ciently numerous or important to make much impression upon 
Roman law. Such law as was developed is very similar to 
the broad general principles governing business corporations 
of modern times. Authorization by the state was essential 
to their formation, and also to their dissolution. The rights 
and duties of the corporation were much the same as those 
of an actual person, within the limits necessarily arising from 
the nature of a corporation as a fictitious person. There can 

§115. 1 Savigny, Treatise on Ro¬ 
man Law, §§86-88. 


DEVELOPMENT OF COMMERCIAL LAW 


453 


be no doubt that these principles found their way into Eng¬ 
land through the church and the ecclesiastics, and had a con¬ 
trolling influence in determining the law applying to corre¬ 
sponding associations there. 2 

Peace guilds formed by the members for mutual protection 
were apparently the first English corporations. 8 The first 
corporations created by charter in England were municipal 
corporations and the trade guilds, corresponding to similar 
Roman corporations above referred to. The weavers’ guild 
was incorporated in Henry II’s reign. The goldsmiths re¬ 
ceived their charter in 1327, the mercers in 1373, the haber¬ 
dashers in 1407, the fishmongers in 1433, the vintners in 
1437, and the tailors in 1466. 4 The guilds made by-laws 
which governed all persons engaged in the trade whether 
members of the guild or not, so long as they were not con¬ 
trary to law or public policy as then conceived. But the guild 
as such did not carry on the trade. That was done by all 
engaged in the trade independently, subject to the by-laws of 
the guild. 

The great trading companies of the sixteenth century, in¬ 
cluding the African Company, the Russian Company, and the 
Turkey Company, were composed of traders with foreign 
countries, and were similar in all respects to the guilds, the 
members trading independently under by-laws of the company 
except that a monopoly of the trade with the particular foreign 
country was generally given to the company. In 1600 a char¬ 
ter was granted the East Indian Company. This company 
was the first to use joint stock, subscribed by such of the 
members as might desire to do so, for certain definite adven¬ 
ture or adventures, the profits of the adventure to be dis¬ 
tributed in proportion to the amounts subscribed by each sub- 

2 Williston, History of Business 4 And., Hist, of Commerce,!, 250; 
Corporations before 1800, in Set. Williston, Business Corporations, in 
Essays, III, 197, 198. Sel. Essays, III, 198, 199 - 

8 L. Brentano, Hist, of Guilds. 


454 


HISTORY OF ENGLISH AND AMERICAN LAW 


scriber. After 1614, the joint stock was subscribed for a term 
of years. Regulations were passed later forbidding members 
to engage in the India trade except as owners of joint stock, 
all private trading being forbidden after 1692. In this way, 
it became a joint stock company, its original character as a 
company to regulate trade with India through by-laws apply¬ 
ing to members trading independently having completely dis¬ 
appeared. The necessity of raising large sums, beyond the 
ability of individual traders, was the immediate occasion of 
the resorting to the joint stock scheme. The only other joint 
stock companies existing in England in 1692 were the Royal 
African Company and the Hudson Bay Company. Thus these 
trading corporations, starting out as associations to govern 
particular trades through by-laws binding on the traders who 
otherwise acted independently, gradually developed into great 
joint slock companies, excluding private trading of its mem¬ 
bers, the entire business being done by the company, the capital 
used being the joint stock subscribed by its members, and the 
profits being divided among the holders of stock in proportion 
to their holdings. 5 

Charters were granted to joint stock companies more fre¬ 
quently during the last eight years of the seventeenth and the 
early years of the eighteenth centuries. 6 An era of extrava¬ 
gant speculations in joint stock associations, most of them 
not incorporated, followed in the early part of the eighteenth 
century. In 1720, the issuance of writs of scire facias to 
inquire into the right of these associations to do business, put 
an end to many of them; and the panic that followed put 
most of the others out of business. This effectually checked 


5 Williston, Bus. Corp., in Sel. Es¬ 
says, III, 200, 201. 

8 As Professor Williston says, the 
Greenland Company was incorpo¬ 
rated in 1692, the Bank of England 
in 1694, the National Land Bank, 


the Royal Lustring Company, the 
South Sea Company, the Royal Ex¬ 
change, and the London (Marine) 
Assurance Companies during the 
years immediately following. Sel. 
Essays, III, 202. 


DEVELOPMENT OF COMMERCIAL LAW 


455 


the further expansion of business in this form until the latter 
part of the eighteenth century, when the need of combined 
capital for the development of public works and of manu¬ 
facturing led to a considerable increase in the number of 
corporations, though the development of corporate enterprise 
continued to be slow until the great industrial expansion of 
the nineteenth century demanded corporate action in order to 
finance the extensive industrial enterprises of modern times. 7 

§116. Powers of Corporations .—The early law, naturally 
enough, made no distinction in the rules applying to municipal 
corporations and guilds, since, as the preceding section shows, 
they were of essentially the same nature before the trading 
companies developed into joint stock companies toward the 
end of the seventeenth century. 

First, as to incorporation. Originally the power to incor¬ 
porate was exercised by the king alone. Most of the great 
companies referred to in the preceding section received their 
charters from the king. After the Revolution, and the Res¬ 
toration of Charles II, it is probable that monopolies could 
be granted only by act of Parliament. 1 The old corporations, 
existing de facto before the development of the rule that a 
grant of favor from the state was necessary, were recognized 
as valid by prescription; but this idea seems to have been 
limited to the ancient forms of corporations. It has no appli¬ 
cation to the business corporations with which we are con¬ 
cerned. 2 

The other essentials of a corporation mentioned by Coke, 8 
viz., persons to be incorporated, a corporate name, a place for 
the corporation to act, created by words sufficient in law, are 
either self-evident or not true. It is self-evident that a cor- 

t Williston, Bus. Corp., id., 203. 2 Williston, Bus. Corp., in Set. Es- 

§116. 1 Horne v. Ivy, 1 Ventr. says. III, 205. 

jq 8 Sutton’s Hospital, 10 Coke 22b, 

(1612). 


456 HISTORY OF ENGUSH AND AMERICAN DAW 

poration must be composed of persons, and that a valid incor¬ 
poration involves the use of words legally necessary for that 
purpose. So also, like an individual, it can sue and be sued, 
obtain rights or incur liabilities only under a name of some 
sort. It was settled later that the name of a corporation may 
be the name it is usually called, though it had not formally 
received a name in its incorporation. 4 

Second, as to its powers. Blackstone gives the implied 
powers of a corporation as follows: “ist. To have perpetual 
succession. . . . 2nd. To sue or be stied, implead or be 
impleaded, grant or receive, by its corporate name, and do 
all other acts as natural persons may. 3rd. To purchase lands 
and hold them for the benefit of themselves and their suc¬ 
cessors. . . . 4th. To have u common seal. 5th. To make 
by-laws or private statutes for the better government of the 
corporation, which are binding on themselves, unless contrary 
to the law of the realm, and then they are void.” 

As Professor Williston says, the first three are reducible 
to the single general principle under which all corporations 
have necessarily acted since corporations as fictitious persons 
have been recognized in the law, viz., that the corporation as 
a fictitious person shall have the capacity to act as a natural 
person so far as the nature of the case admits. 5 

The use of a seal by a corporation was undoubtedly based 
on the same practical reasons which made the use of seals 
quite general in England at one time on the part of all persons. 
As illiteracy passed and writings came into general use, seals 
were used only in connection with formal instruments, deeds, 
and specialties. But this change was not made in the case of 
corporations, the law becoming well settled, without any appar¬ 
ent reason, that a corporation could act only by deed under its 

4 Dutch West India Co. v. Moses, • 8 Williston, Bus. Corp., in Sel. Es- 
1 Stra. 612, and other cases cited, says, III, 208, 209. 

Williston, Bus. Corp., in Sel. Essays, 

III, 206, notes 2 and 3. 


DEVELOPMENT OF COMMERCIAL LAW 


457 


seal. 6 This was long before the joint stock companies, busi¬ 
ness corporations in the modern sense, had developed. When 
this law was established it did no great harm, because corpo¬ 
rations were limited to municipalities and guilds, apart from 
ecclesiastical corporations, as we have seen. 7 

When joint stock companies developed as business corpo¬ 
rations in the modern sense, this old rule, never based on any 
known reason, created a great deal of hardship, mitigated 
somewhat by exceptions which had existed in some form under 
the early cases, that the rule did not apply to petty acts, or 
routine acts of every day occurrence, or where immediate 
action was required. Therefore bills and notes of corpora¬ 
tions were good without seals. 8 It became established law 
that regular officers and agents could be employed or author¬ 
ized to act for the corporation by parol, just as ordinary 
servants might be hired or discharged by parol under the old 
exception. 9 Apparently fully executed transactions could not 
be disturbed merely because the executory contract out of 
which they arose was not under seal, and transactions which 
of themselves created an obligation were enforceable. Never¬ 
theless, executory contracts of corporations were void if not 
under seal, the old law persisting until well into the nineteenth 
century, though all reason for it, if any ever existed, had 
disappeared, and though its application gave rise to constant 
hardship and injustice. 10 

The early corporations, municipalities and guilds, with dele¬ 
gated powers of government over the community or trade, 
necessarily had the power to make by-laws, with power to 
enforce them by fine and in many cases even by imprison- 


8 Y.B. 9 Edward IV, 39, 4 Henry 
VII, 17b, 7 Henry VII, 9. Excep¬ 
tions were made in routine matters 
of little importance, as to appoint 
a cook, directing a servant to light 
a candle, build a fire, and the like. 

7 §115, a ***- 


8 East London Waterworks Co. ▼. 
Bailey, 12 Moore 532. 

9 Rex v. Bigg, 3 Pr. Wms., 419; 
Bacon, Abr., Corp. E., 3; Kyd, 
Corp., I, 26. 

19 See note 8 supra. 


458 HISTORY OF ENGLISH AND AMERICAN LAW 


ment. 11 But the power to make by-laws was limited more 
and more as time went on; the power of imprisonment, and 
later of declaring a forfeiture of goods, could not exist with¬ 
out special act of Parliament. 12 Still later it was held that 
by-laws could not be contrary to law, or against public policy, 
or unreasonable. 13 Some of the first of the joint stock com¬ 
panies, such as the East India Company, were given power 
to regulate the trade generally, as explained in the section 
preceding; but that soon disappeared, joint stock companies 
becoming private business corporations organized to carry on 
a definite line of business. Necessarily, therefore, their power 
to make by-laws was then further restricted to the limits of 
the business in which they were engaged, the old restrictions 
against by-laws contrary to law or public policy or otherwise 
unreasonable still standing. 14 

§11/. Rights and Duties of Stockholders and Directors .— 
The ownership of stock was the great difference between the 
old membership corporations and the modern business or joint- 
stock companies which grew up in the seventeenth century. 
The modern law is that a share of stock is personal property, 
a chose in action giving to the stockholder the right to share 
in net earnings distributed in the form of dividends and in 
the net assets of the corporation on dissolution. Prior to 
1800 this was not the law. The corporation was regarded 
strictly as a trustee holding its property for the benefit of the 
stockholders as cestuis que trust/ This accounts for the early 

11 Grant, Corp., 86; Towle’s Case, favor on the members’ stock for 

Cro. Car., 582; Chancey’s Case, 12 debts due from them to the Com- 

Coke 83; Horne v. Ivy, 1 Ventr. 47; pany was held reasonable in this 

Clarke v. Tuckett, 2 Ventr. 183. case. Today such a by-law is prob- 

12 Grant, Corp., 78-83. ably bad. See Williston, Bus. Corp., 

13 Child v. Hudson’s Bay Co., 2 in Set. Essays, III, 215. 

Pr. Wms. 207. §117. lU The legal interest of all 

14 A by-law of the Hudson’s Bay the stock is in the company, who 

Co. creating a lien in the Company’s are trustees for the several mem- 


DEVELOPMENT OF COMMERCIAL LAW 


459 


cases holding that shares of stock in corporations the property 
of which was wholly or chiefly realty, were real property, 
transferable as such and subject to the law applying to real 
property. 2 

Another ruling based on this idea of a trust between cor¬ 
poration and stockholder was that where stock was transferred 
on the company’s books by fraud or mistake without the 
owner’s consent, title, supposedly in the corporation as trustee, 
passed to the transferee, subject to being set aside because of 
the fraud or mistake, but in the meantime the transferee 
became actually the owner of the stock. 8 The corporation 
was held liable in these cases for the wrongful transfer as a 
trustee, though acting in good faith. 4 Of course, when the 
true nature of stock came to be understood, it was recognized 
that no such transfer could affect the rights of the stockholder, 
except by estoppel, or give any rights as stockholder to the 
transferee. 5 

The cases prior to 1800 settle beyond a doubt that a con¬ 
tract for the sale of stock would not be enforced by specific 
performance in equity apart from special circumstances, the 
relief at law being adequate, since stock of the same kind 
could be bought of anyone else, and the difference in price 


bers.” Lord Macclesfield in Child 
v. Hudson’s Bay Co., 2 Pr. Wms. 
207. 

2 Drybutter v. Bartholowmew, 2 
Pr. Wms. 127; Townsend v. Ash, 
3 Atk. 336, and other cases cited by 
Professor Williston, Bus. Corp., in 
Sel. Essays, III, 218, note 2. 

These cases were distinguished in 
Bligh v. Brent, 2 Y. & C. 268, 296, 
on the ground that most of the 
property involved in these cases 
was in the stockholders, the corpo¬ 
ration having simply power to man¬ 
age it. This was a distinction with¬ 


out a difference, because all the 
shares represented was the share¬ 
holders’ interest in the rights of the 
corporation, not involving in any 
way the ownership of the land. 
This case, decided in 1836, estab¬ 
lished in England the modern view 
that shares of stock are personal 
property in all cases. 

3 Hilyard v. South Sea Co., 2 Pr. 
Wms. 76. 

4 Harrison v. Pryse, Barnard Ch. 
324; Ashby v. Blackwell, Ambl. 503. 

5 See Lowell, Transfer of Stock. 


460 HISTORY OF ENGLISH AND AMERICAN LAW 


recovered at law from the defaulting vendor.* This is the 
modern view in America. 7 In England, however, the modern 
view is that specific performance of contracts to sell stock 
will be enforced. 8 

From the inception of joint stock companies, stock books 
were kept and title was transferred by a transfer in the stock 
book. Each stockholder of record had a right to vote at the 
election of officers. Before the principle of joint stock devel¬ 
oped, each member had one vote. The unit of the corporation 
was the member. The change to the modern view in stock 
companies that the voting unit is the share, the members 
having one vote for each share of stock owned by them, was 
a very gradual matter. The first change was to allow the 
larger holder additional votes, but not in proportion to his 
additional holdings. Thus, in the Greenland Company, a 
subscriber of £500 had one vote, a subscriber of £1000 had 
two votes; but two votes was made the limit, irrespective of 
the extent of the subscription.® The large holder of stock 
as a practical matter acquired proportionate voting power by 
“splitting stock,” transferring it among his friends for the 
purpose of voting it .for him. 10 As late as 1862, the English 
Companies Act limits the member’s voting power, one vote 
for each share up to ten being permitted, one vote for every 
five shares between ten and one hundred, and one vote for 
every ten shares thereafter. The courts, however, permit the 
stockholder to get a vote for every share by transferring his 
stock among his friends in blocks of ten. 11 It need not be 


8 Cud v. Rutter, 1 Pr. Wms. 570, 
(1719) ; Cuppur v. Harrison, Bunb. 
135; Nutbrown v. Thornton, 10 
Ves. 159; Davison v. Westbrook, 
Vin., Abr., V, 540, pi. 22. 

7 Morawetz, Corp. (2nd ed.), 
§218. 

8 Fry, Spec. Perf., Part VI, ch. 1. 


8 4 and 5 Wm. & Mary, ch. 17, 
§xvii. 

10 See Stat. 7 George III, ch. 48, 
(1766), which criticizes this prac¬ 
tice, and provides that members not 
stockholders for six months or 
more shall not vote. 

11 Moffat v. Farquhar, 7 Ch. Div. 


DEVELOPMENT OF COMMERCIAL LAW 461 

added that, in the United States, one vote for each share of 
stock is the rule everywhere. 

Voting by proxy required special authorization, usually by 
provision in the charter. A by-law to that effect would prob¬ 
ably have been bad prior to 1800, though perfectly valid under 
the modern cases. 12 

The principles governing the duties and powers of directors, 
and the situations in which stockholders may intervene to 
enjoin their action, or to hold them liable for misfeasance or 
non-feasance, find their first expression in Lord Hardwicke’s 
opinion in the Charitable Corporation v. Sutton, 18 which is 
the basis of the modern law, and is still quoted as expressing 
the law correctly. 14 The stockholder’s rights to dividends and 
to his distributive share of the surplus after payment of debts 
on the winding up of the company, existed as a matter of 
course from the beginning of joint stock corporations. Cases 
on these questions did not arise before the nineteenth century. 

That individual members or stockholders are not liable for 
corporate debts has always been the law in England. In Rome, 
they could be held if the corporation became insolvent. 15 An 
early English case in which the governing body of the cor¬ 
poration failing to pay a judgment against it were compelled 
to levy an assessment against the members to raise the amount 
due, does not establish personal liability of the members as 
such. The corporation in this case had the right to collect 
the amount from the members by the terms of their member¬ 
ship, and the courts merely permitted the creditor to reach in 
equity this right of the corporation against its members. 16 
For obvious reasons, such rights against members are not 
reserved by business corporations, and the question involved 

591, cited by Professor Williston, 14 Taylor, Corp., §619. See quo- 
Bus. Corp., in Sel. Essays, III, 226, tation from this case, Williston, 
note 2. Bus. Corp., in Sel. Essays, III, 227, 

12 See Williston, Bus. Corp., id., 228. 
and cases cited. isAyliffe, 200; Savigny, §92. 

18 2 Atk. 400. 18 Dr. Salmon v. Hamborough 


462 HISTORY OF ENGLISH AND AMERICAN LAW 


has been rarely raised. Nevertheless, as Professor Williston 
points out, the English case above referred to was followed 
in 1826 in South Carolina in a well considered case. 17 

On dissolution of a corporation, the effect was, as stated 
by Kyd: “All its lands revert to the donor, its privileges and 
franchises are extinguished, and the members can neither 
recover debts which were due to the corporation, nor be 
charged with debts contracted by it in their natural capacities. 
What becomes of the personal estate is, perhaps, not decided, 
but probably it vests in the crown.” 18 

Professor Gray in his work on Perpetuities comes to the 
conclusion, after a careful examination of the cases, that the 
land really escheated to the lord in such cases instead of 
reverting to the donor, the mistake of the writers, from Coke 
to Kyd, arising out of the fact that the early corporations 
for the most part held their lands by frankalmoign tenure, 
and the lord who really received the land back by escheat, 
was usually the donor. Professor Williston suggests that a 
real or fancied analogy to the civil law may be the true 
explanation. Under the civil law, the rule is laid down that 
on dissolution “the members would take out what they had 
of their own in the corporation,” and, though this is confined 
to members, it may have been extended to outside donors by 
analogy. This suggestion is supported by the fact that the 
early law of corporations was derived so largely from Roman 
law. It goes without saying that there was never any reason 
or sense in this rule, the power of a corporation to hold in 
fee being admitted; but it was generally accepted as law down 
to modern times. 19 

Blackstone’s statement, that “the debts of a corporation 

Co., Ch. Cas., 294. See Williston, Bus. Corp., in Set. Essays, III, 230, 
Bus. Corp., id., 230. 231. 

17 Hume v. Windyaw and Wand 18 Kyd, Corp., II, 516. 
v. Canal Co., 1 Car. L. J., 217; 19 See Williston, Bus. Corp., in 

Sc. 4 Am. L. Mag., 92; Williston, 


DEVELOPMENT OF COMMERCIAL LAW 


463 

either to or from it are totally extinguished by its dissolution,” 
is erroneous. The debts due from a dissolved corporation, 
though unenforceable at law, could be enforced in equity 
against any property which belonged to the corporation at 
the time of its dissolution. 20 The right to collect or enforce 
debts due the dissolved corporation was not passed on before 
the nineteenth century. 

The modern law of corporations has grown up from the 
beginnings outlined above through the decisions and statutes 
of the nineteenth century. These decisions and statutes con¬ 
stitute the present law, dealt with in treatises on the subject, 
and lie outside the scope of this work. In the United States, 
corporate law had no independent growth prior to the nine¬ 
teenth century. Such law as existed here up to that time 
was the English law. 21 


§118. Insurance .—Commercial insurance apparently origi¬ 
nated with the important commercial cities of Northern Italy 
in the form of insurance of goods while in transit, probably 
in the thirteenth century. Entries in books of account show¬ 
ing payments for insuring goods in transit go back to 1318, 
proving that the insuring of goods shipped by sea or land 
was then well established, and therefore had probably existed 
for some time before. 1 Marine insurance was the most com¬ 
mon form; but goods shipped by land, as well as shipments 
of specie, were also insured. 2 Ordinances regulating insur- 


Sel. Essays, III, 232, 233; Gray, 
Perp., §§46-51. 

20 Naylor v. Brown, Finch, 83. 

21 Williston, Bus. Corp., in Sel. 
Essays, III, 234, 235. 

§118. 1 Vance, Early History of 
Insurance Law, in Sel. Essays, III, 
104-107. See Extracts from Book 
of Francesco Del Bene & Company, 
of Florence, referred to by Pro¬ 
fessor Vance, p. 105, note 1; also 


copy of oldest policy of insurance 
in existence, made in Genoa in 1347, 
page 105, note 3. 

2 Bensa, Insurance, 51. Professor 
Vance says (Sel. Essays, III, 107, 
note 2), that it is highly probable 
insurance during the Middle Ages 
was not so narrowly confined to 
marine insurance as is generally 
believed. He refers to Magen’s 
Essay on Insurance, published in 


464 HISTORY OF ENGLISH AND AMERICAN LAW 


ance were passed in Venice in 1411, and again in 1424. In 
1435, insurance ordinances were published in Barcelona. The 
sea laws of Olerm and of Wisby, and the edition of Consolat 
de Mar published at Barcelona in 1494, contain no reference 
to insurance. A work entitled Guidos de la Mer by an 
unknown author during the period 1556-1600 contained an 
extensive treatment of marine insurance. In 1681, the Marine 
Ordinances of Louis XIV, drawn probably by Colbert, were 
enacted. These regulated the insurance business in a com¬ 
prehensive way, showing the importance of the business at 
that time and indicating that it had been developing for a 
very considerable time. Malynes in his work on the law mer¬ 
chant, 1622, claims that insurance business was done in Eng¬ 
land before it had come into use at Antwerp. No doubt the 
business was introduced at an early date into London by the 
Lombards who were very active in commercial matters in 
London, the street in which they carried on their business 
being given the name of Lombard Street. The first definite 
record of insurance in England is in an admiralty case decided 
in 1545. 8 Policies of the year 1547 and 1548 are still in 
existence. 4 

Insurance law, growing up as it did principally as marine 
insurance, was unquestionably part of the law merchant 
throughout commercial Europe from its beginning, and it 
was administered and enforced like the other branches of that 
law in the special courts given over to that law. In con¬ 
nection with insurance cases, we encounter evidence of much 
dissatisfaction with those courts because they apparently did 
not have the means to enforce their judgments effectively. 6 

London in 1755, which gives a com- cies, Vance, Insurance, in Sel. Bs- 

plete copy of a policy made in 1720 says, III, no, note 5. 

insuring the lives of certain cattle. 8 See extracts from the Seldon 

8 Emerson v. De Sallanova, Sel- Soc. Pub. in Professor Vance’s 
don Soc. Pub., Vol. XI, p. lxvi. article, in Sel. Essays, III, hi, 112. 

4 See copy of one of these poli- 


DEVELOPMENT OF COMMERCIAL LAW 


465 


It appears that merchants turned to the Admiralty Court for 
relief; but, for some reason not known, possibly interference 
with that court by writ of prohibition issued by the common 
law courts, very little was done in insurance cases in that 
court. The common law courts had no procedure or remedies 
at that time adaptable to commercial cases, and very little 
effort was made to get relief in insurance cases in those courts 
up to 1600.° In 1601 a statute was enacted providing for the 
appointment of special commissions to try insurance cases; 
but this new court was limited in its jurisdiction, being con¬ 
fined to actions by the insured, and its judgments could not 
be set up to bar subsequent actions in the common law courts. 7 
It therefore failed to relieve the situation, which continued 
much as before until the appointment of Lord Mansfield as 
Chief Justice in 1756. During the intervening one hundred 
and fifty years, insurance law made very little progress. The 
reported insurance cases in the common law courts did not 
total over sixty. 8 The practice of the common law judges 
of leaving to the jury as questions of fact all questions of 
mercantile customs, and their consequent shirking of the work 
of determining the law in commercial cases, prevented any 
development of consequence in the law of insurance as well 
as in other branches of the law merchant, with the exception 
of the law of bills and notes. Such an elementary principle 
of insurance as the necessity of an insurable interest, long 
settled on the continent, remained uncertain until, in 1746, 
a statute was enacted forbidding insurance without insurable 
interest in the assured. 9 

Lord Mansfield’s work in establishing the law merchant as 


6 Dowdale’s Case, 6 Coke 46b, 
probably the first recorded insur¬ 
ance case in a common law court. 

? St. 43 Eliz., ch. 12; Cunning¬ 
ham, Insurance (3rd ed., 1766), 163- 
169; Bl., Comm., Ill, 74, 75 - 


8 Park, Marine Insurance (4th 
ed.), xiiii. 

9 19 George II, ch. 37. This stat¬ 
ute also forbade reinsurance, mis- 
takingly regarding such insurance 
as wagering. 


31 


466 HISTORY OF ENGLISH AND AMERICAN LAW 

part of the common law as described heretofore, 10 resulted in 
the establishment as part of the common law of a complete 
body of insurance law, which has been greatly extended during 
the nineteenth century, but without much change in other 
respects from the law as laid down by Lord Mansfield. The 
modern law of insurance so developed belongs to treatises on 
the law of insurance and lies outside the scope of this work. 


10 See §112, ante. 


CHAPTER XX 


CAPACITY OF PERSONS 

§H 9 - Married Women .—Much of the law affecting - the 
property of married women has been discussed in the sections 
dealing with Curtesy, Estates by the Marital Right, and 
Dower. 1 The common law of the thirteenth century defi¬ 
nitely rejected the principle of community property between 
husband and wife which prevailed throughout a considerable 
part of the continent. 2 The husband had an estate by the 
marital right in his wife’s property during their joint lives 
which he could convey without her consent, and which gave 
him full possession and control of its enjoyment and the 
income derived from it. This he had not so much because 
of the fiction that husband and wife were one, but rather as 
head of the family. Bracton, in giving reasons for the rule 
that husband and wife were required to join in an action to 
recover the wife’s land, after stating that “they are quasi one 
person,” added: “for the thing is the wife’s own, and the 
husband is guardian as being the head of the wife.” 3 They 
were treated as seised together in right of the wife, and this 
was also true when the husband’s estate was enlarged to an 
estate for his own life as tenant by curtesy by the birth of 
issue. The wife’s separate identity and right in her land was 
always recognized. Thus in the early part of the thirteenth 
century conveyances by the wife with her husband’s consent 
were common. 4 Later in that century, the rule was estab¬ 
lished that the wife’s separate land could be conveyed only 
by fine joined in by both of them; and a separate examination 

§119. *See §§30, 31, ante. 3 Bracton, f. 429b; Poll. & Mait., 

2 Poll. & Mait., II, 397-399 5 Holds- II, 403 - 
worth, III, 405, 407. 4 See instances given, Poll. & 

Mait., II, 408, note 2. 


468 HISTORY OF ENGLISH AND AMERICAN LAW 


of the wife was necessary, as in the corresponding case of a 
conveyance by fine of the husband’s land in which the wife 
joined to bar her dower. 5 

All chattels of the wife became the property of the husband 
absolutely. This became the established rule by the end of 
the thirteenth century. 6 He had the right to enforce and 
collect her debts and other choses in action; but, if he did 
not do so during the marriage, he ceased to have any right 
to them. Possession was necessary to their ownership, and 
they could not be taken possession of except by collecting or 
enforcing them. 7 

Chattels real, including tenancies for years and wardships 
belonging to the wife, could be assigned by the husband, and 
the proceeds of such assignments were his absolutely; if, 
however, he did not assign them during the marriage, they 
reverted to the wife or her estate like freehold estates. 8 

A married woman’s disability to make contracts in her 
own behalf was due entirely to her incapacity to hold property, 
not to any personal incapacity growing out of the theoretical 
unity of husband and wife. Her personal capacity to act as an 
executor or to make contracts as agent for another has always 
been undoubted. In any case of contract made by the wife, 
it would be enforceable against the husband if made by her 
as his agent, or if made in his behalf and later ratified by 
him. 9 


5 Poll. & Mait., II, 409, 410; 
Holdsworth, III, 406; Bracton, f. 
321b, 322. 

6 Britton, I, 227; Y.B. 30, 31 Ed¬ 
ward I, 522, 538; 32, 33 Edward I, 
186; 33, 35 Edward I, 312. That 
they could not own chattels in com¬ 
mon was held in Y.B. 7 Henry VI, 
Mich., pi. 6; Holdsworth, III, 410. 

7 Y.B. 3, 4 Edward II, 150; Y.B. 

10 Henry VI, Mich., pi. 38; Holds¬ 

worth, III, 410. 


8 Though this was a doubtful 
point in Henry IV’s reign, Y.B. 2 
Henry IV, Pasch., pi. 14, it was 
finally settled in Y.B. 7 Henry VI, 
Mich., pi. 6, cited Holdsworth, III, 
411; Co. Litt. 351, a and b. 

9 Co. Litt., 351b; Y.B. 27 Henry 
VIII, Mich., pi. 3. See quotation 
from Fineux C.J., Y.B. 21 Henry 
VII, Mich., pi. 64, Holdsworth, III, 
412, 413- 


CAPACITY OF PERSONS 


469 


A married woman could not be guilty of larceny from her 
husband; 10 and, except in the case of the worst crimes, such 
as murder and treason, it was presumed that she acted under 
coercion by her husband if she committed the offense in his 
presence and at his direction, though this presumption could 
be rebutted. 11 Otherwise, marriage did not affect her respon¬ 
sibility for crimes committed by her. 12 Because the husband 
became owner of all his wife’s chattels, he was liable for her 
antenuptial debts and torts, if sued therefor during the mar¬ 
riage. Death of either ended this liability, which was not 
absolute, but attached to him only as husband. 13 The husband 
was also liable for her personal torts committed during the 
marriage, and the action was brought against both of them. 14 
If she was guilty of a disseisin or of waste, she could be held 
liable therefor after her husband’s death if she remained in 
possession of the real property involved. 15 The husband was 
not liable for his wife’s postnuptial debts unless the debts were 
his, as we have seen. 13 

The effect of the modern Married Women’s Property Acts 
in England and the different states has already been outlined 
in §31, treating of the estate by the Marital Right and Curtesy. 
Today the old estate by the marital right no longer exists. 
The husband no longer is the owner of his wife’s chattels, 
nor does he have any interest in her choses in action or chat¬ 
tels real. Her control over her property, to its use, enjoy¬ 
ment, income, and disposition, is absolute in most jurisdictions, 
though in some states her husband must join with her in 
conveyances or leases of real property. Her right to make 
contracts in most of the states corresponds with her power 


10 Hale, Pleas of the Crown, I, 
516. 

11 Hale, id., I, 46. 

12 Holdsworth, III, 413. 

13 Y.B. 19 Edward III, 390, 392; 
49 Edward III, Mich., pi. 5; 12 
Henry VII, Trin., pi. 2. 


14 Y.B. 36 Henry VI, pi. 2. This 
liability was probably also limited 
to the marriage. See Holdsworth, 
III, 414. 

15 Y.B. 39 Henry VI, Hil., pi. 8. 

16 See note 9, supra. 


470 


HISTORY OF ENGLISH AND AMERICAN LAW 


to own, hold, and transfer property, real or personal; that is, 
she may contract as though unmarried. Some states provide 
that she may not contract with her husband or become a 
surety for him, these provisions being obviously for her pro¬ 
tection. 17 


§120. Infants .—Capacity of infants with references to 
crime and tort has been treated in the chapters outlining the 
history of those topics. 1 An infant’s property was managed 
by his guardian during his minority; and the general principle 
of the early law seems to have been that actions by and against 
an infant in the enforcement of property rights had to wait 
until he attained his majority. We know very little of how 
broadly this principle was applied before Bracton’s time. 
Bracton limited its application to property rights inherited 
by the infant. If he took property by inheritance from an 
ancestor, an action brought to recover the property from him 
would be held in suspense until he became of age; if he 
claimed property by inheritance of which another was seised, 
he could not recover it before attaining his majority. 2 In 
other cases generally, actions could be brought by or against 
him, as where he had been disseised or had been guilty of a 
disseisin. 3 His full liability in tort has already been referred 
to. He could recover money due him and maintain the action 
of account against another receiving money for him, 4 though 
account could not be maintained against him, 5 nor could deti¬ 
nue. 8 Eventually it was decided that he could make a lease 


17 See Williston, Contracts, I, 511- 
517, for provisions of the statutes 
in England and of the different 
states and territories, in alphabetical 
order. 

§120. 1 As to crimes, see §93; as 
to torts, see §94, ante. 

2 Poll. & Mait., II, 440, 441 ; Brac¬ 
ton, ff. 274-275^ 422b; Markal’s 


case, 6 Coke 3b, (1593), quoted in 
Holdsworth, III, 400, note 4. 

3 See Markal’s case, 6 Coke 3b, 
supra; Bracton, f. 422; Y.B. 3, 4 
Edward II, 14, 185. 

4 Y.B. 18 Edward IV, pi. 7; Y.B. 
6 Edward III, pi. 12. 

5 Fitz., Abr., Enfant, pi. 11. 

0 Y.B. 41 Edward III, pi. 35. 


CAPACITY OF PERSONS 


471 


of land, subject to disaffirmance on becoming of age; 7 and, 
in this and other cases of the fifteenth century, the modern 
rule of an infant’s capacity to convey, execute leases, and 
make contracts was foreshadowed. 8 Whether a feoffment by 
an infant was void or voidable was discussed at length in a 
case of about the reign of Henry VI. 9 

About 1600, Perkins laid down the doctrine that an infant’s 
gifts or grants delivered by the hand of another were void, 
but were voidable and not void if delivered by the infant 
himself. 10 This principle, always without the support of any 
intelligible reason, led to the rule laid down by Lord Mansfield 
that an infant’s power of attorney was absolutely void, 11 and 
that any act done by an infant through an agent was void. 12 
Modern cases have cast out this old rule as without reason 
or merit, holding that an infant’s contracts with an agent, or 
contracts or grants with third persons through an agent, are 
voidable at his election upon his becoming of age, like his 
other grants and contracts, not void, the only possible survival 
of the old law being in cases of an infant’s power of attorney 
to confess judgments or appointment of an attorney to rep¬ 
resent him in court. 13 

Cases of the latter part of the eighteenth and first part of 
the nineteenth centuries held that acts of the infant which 
were necessarily prejudicial to him were absolutely void, while 
those acts which might be beneficial to him were voidable at 


* Y.B. 7 Edward IV, pi. 16 (p. 6), 
per Brian, quoted Holdsworth, III, 
402, note 11. 

8 See cases discussed, Holdsworth, 
III, 402, note 12. 

9 Y.B. 9 Henry VI, pi. 13. For 
other later cases involving infancy 
see Rolle, Abr., Enfants; Bacon, 
Abr., Infancy; Comyr, Digest, En¬ 
fant. 


10 Profitable Book, §12; Williston, 
Contr., I, 439 - 

11 Zouch v. Parsons, 3 Burr. 1794* 

12 See cases cited, Williston, 
Contr., I, 444, note 80; Philpot v. 
Bingham, 55 Ala. 435 , Huffeut, 
Cases on Agency, 15. 

18 Coursolle v. Weyerhauser, 69 
Minn. 328. Huffeut, Cases on Agen¬ 
cy, 17. See list of cases cited Wil¬ 
liston, Contr., I, 444, note 83. 


472 


HISTORY OF ENGLISH AND AMERICAN LAW 


his election on his attaining full age. 14 Almost without excep¬ 
tion today, all acts and contracts of an infant are voidable 
and not void under the modern cases, his right to avoid preju¬ 
dicial contracts being regarded as sufficient protection. 15 The 
infant’s liability for necessaries, going back, as we have seen, 
to the earliest authorities on the subject, is based now on 
quasi-contract rather than on the infant’s promise. 16 

14 Keane v. Boycott, 2 H. Bl. 511, 15 See Williston, Contr., I, 443- 

515; Harvey v. Ashley, 3 Atkins 446, and cases there cited. 

607, and other cases cited, Willis- 16 Williston, Contr., I, 466. 

ton, Contr., I, 439, note 51, 443, note 

78. 


CHAPTER XXI 


DEVELOPMENT OF EQUITY JURISDICTION 

§121. Organization of the Court of Chancery .—The de¬ 
velopment of Chancery has been outlined in an earlier chapter 
treating of the history of uses and trusts. We have seen that, 
in the fifteenth century, it had become a separate court dis¬ 
tinct from the Council with which it had been closely associ¬ 
ated and largely identified prior to that time. 1 With the great 
increase in judicial work which followed the enactment of the 
Statute of Uses and the extensive growth of wealth and com¬ 
merce in the fifteenth century, it became necessary for the 
Chancellor to give most of his time regularly to his work as 
a judge. 2 He was assisted by the Masters in Chancery, twelve 
in number, headed by the Master of the Rolls. Their chief 
duty was to assist the Chancellor in the hearing of cases and 
also in the disposition of interlocutory motions. The Chan¬ 
cellor frequently delegated to them parts of a case to hear 
and report back to him. Accounts were regularly referred to 
them after a hearing in the case had taken place. The elder 
Bacon, when he was Chancellor (1558-1579), issued orders 
specifying what matters could and what could not be dele¬ 
gated in this way. 3 They could not hear and determine except 
in special cases. Applications as to procedure, questions as to 
the sufficiency of answers, and the examination of interroga¬ 
tories were some of the principal matters referred to them. 4 
The Master of the Rolls, who at first was simply the head of 
the Masters and performed similar duties, later acquired the 
power to hear and determine cases generally through com¬ 
missions issued to him. 

§121. 1 See §54, ante. 3 Bacon, Orders, 45*53- 

2 Campbell, Chancellors, II, 87. 4 Spence, I, 361. 


474 


HISTORY OF ENGLISH AND AMERICAN LAW 


Coke states that, in the absence of the Chancellor, the 
Master of the Rolls heard causes and made orders. 5 In the 
seventeenth century, the question whether he had general 
authority without special commission to exercise these powers 
or not, was argued quite extensively. The Statute 3 George 
II, ch. 30, settled the matter by enacting that orders made by 
the Master of the Rolls should be valid, subject to appeal to 
the Chancellor. He still continued, however, to act as the 
deputy only of the Chancellor, hearing and determining cases 
in his absence. His position from the fifteenth to the nine¬ 
teenth centuries, therefore, was that of a subordinate judge 
with limited powers. 6 

Under the Masters in Chancery was a large staff of clerks, 
headed by the Six Clerks who originally prepared the writs 
issuing out of Chancery, aided in keeping the Rolls, and per¬ 
formed various other duties, acting also as solicitors of the 
parties. As the Chancery developed and its business increased, 
most of these duties were taken over by other officials, and 
the management of cases was generally in the hands of the 
parties’ private solicitors, the Six Clerks continuing to keep 
the records; and, because they were still in nominal control 
of the suits theoretically as solicitors for the parties, they were 
able to compel their supposed clients to take copies of all 
papers made in such way as to extract as much money as 
possible from the suitors in fees, though the copies were not 
needed. 7 

Lack of enough judges to do the work of the court was its 
greatest weakness. The Chancellor and the Master of the 
Rolls could not possibly attend to the great mass of cases 
which were brought in Chancery. The court was always very 
much behind with long lists of cases waiting to be heard and 
disposed of. Practice in Chancery was exceedingly dilatory. 
The calendar was clogged with cases brought merely to delay 

6 Coke, Inst., IV, 97. 7 Holdsworth, I, 215, 216. 

8 Cooper, Chancery, 350, 351. 


DEVELOPMENT OF EQUITY JURISDICTION 


475 


justice, and time taken with frivolous suits made matters worse 
for honest suitors. Everything was referred to Masters, and 
the Masters improved the opportunity by taking money to 
hurry up cases. Under various guises in the form of fees, 
they exacted from suitors payments which were often plain 
bribery. Dilatory motions, rehearings without cause with 
new references, interrogatories, examinations, etc., gave every 
advantage to a wealthy suitor, and made relief in equity an 
exceedingly slow and expensive kind of justice. It was all 
highly profitable to all involved except the unfortunate public; 
and, as the special knowledge and skill necessary to reform 
the system was monopolized by its beneficiaries, there was no 
one through whom reforms could be made. The attempted 
reforming of Chancery after the Rebellion during Cromwell’s 
time failed for this reason. After the Restoration, the abuses 
became worse. The office of Master, then worth £1000, con¬ 
stantly rose in value until, at the beginning of the eighteenth 
century, it was worth £6000, and the “market” was strong, 
as we would say today. The gouging of the suitors in every 
possible way extended to all the important officials of the 
court. Denial of justice, through delay, the tieing up of leg¬ 
acies and estates for long terms of years, constantly grew 
more extreme as the business of the court grew in volume 
because of the growth of the country and in spite of these 
abuses. A Vice-Chancellor was provided for in 1813; but 
this did no real good, as appeals could be and were commonly 
taken from his decrees to the Chancellor. From 1832 to 
1853, a series of reforms was carried through which removed 
these abuses and accomplished a complete reorganization of 
the court into its modern form. 8 

§122. Growth of Equity Jurisdiction .—Blackstone sum¬ 
marizes the condition of equity at the end of the fifteenth 

8 See Holdsworth, I, 217-235, as Chancery and its reorganization in 
to defects in the organization of the nineteenth century. 


476 HISTORY OF ENGLISH AND AMERICAN LAW 


century as follows: “No regular judicial system at that time 
prevailed in the court; but the suitor, when he thought himself 
aggrieved, found a desultory and uncertain remedy, according 
to the private opinion of the Chancellor, who was generally 
an ecclesiastic, or sometimes (though rarely) a statesman.” 1 
During the sixteenth and early part of the seventeenth cen¬ 
turies, the principles on which Chancery acted in its equity 
jurisdiction gradually took definite form, though their devel¬ 
opment into a fixed system came later. The earliest and most 
important part of its equity jurisdiction was over uses and 
trusts, the history of which has been already outlined in an 
earlier chapter. 2 Here equity had the entire field, as the 
common law courts refused to recognize uses or trusts in any 
form. This class of rights was therefore purely equitable. 
Equity acted because the law gave no remedy at all. Its 
jurisdiction over contracts and torts arose out of the fact that 
equity gave relief by controlling the action of the defendant 
personally, compelling him by decree to carry out the con¬ 
tract specifically, or restraining him by injunction from com¬ 
mitting threatened acts of tort. 3 Its jurisdiction in cases of 
fraud, duress, mistake, and accident, also arose from the char¬ 
acter of the relief which equity was able to give by its method 
of acting in personam against the defendant. Thus, in cases 
of fraud, though fraud could be set up as a defense at law, 
the cancellation and surrender of deeds or bonds secured by 
fraud could not be secured at law. Equity, however, by its 
control of the person of the defendant, compelled him to sur¬ 
render them up in such cases for cancellation. 4 In all these 


§122. 1 Bl., Comnt., Ill, 53. 

2 Chapter IX, ante. 

3 See §§121, 122, post. 

4 Sel. Cases in Chancery, (S. S.), 
cases 8 and 9, (duress) ; cases 2 
and 99, (fraud); Bief v. Dyer, 
Richard II, Cal. I, xi (forgery), 
cited in Holdsworth, I, 243, note 7. 


Thus if a bond had been paid in 
whole or in part but not surren¬ 
dered, it could be enforced at law. 
Equity interfered, restraining the 
enforcement of the bond except for 
the amount due upon it and com¬ 
pelling its surrender and cancella¬ 
tion. Report of Cases in Ch., I, 


DEVELOPMENT OF EQUITY JURISDICTION 


477 


cases, equity dealt with purely legal rights, supplementing the 
law courts and giving further or different relief because the 
remedy at law was inadequate. 

By means of this personal control, equity was able to compel 
discovery of documents in the defendant’s possession, or the 
disclosing of facts which justice demanded should be disclosed 
in order that adequate relief might be given. 5 The organ¬ 
ization of the court, with its Masters in Chancery and their 
extensive retinue of clerks, made Chancery the one effective 
place for actions of account. Though the action of account 
goes back to the beginning of the common law in Glanville’s 
time, and was used commonly against bailiffs, receivers, and 
guardians in socage, 6 the superior facilities of equity gave it 
as a practical matter almost exclusive jurisdiction even in these 
cases. 7 Its jurisdiction over partnership law arose not only 
from the fact that equity more readily adopted this branch of 
the law merchant, but also because, in nearly all cases, it 
involved accountings between partners. Its jurisdiction over 
suretyship and decedents’ estates is based on the same reason. 
In the sections following, we shall examine in greater detail 


App. 35; Kerley, Eq., 90. As to 
accident, Sel. Cas. Ch., (S. S.), No. 
39; Atkinson v. Harmon, (Phil. & 
Mary), Cal. I, cxlii. Where by mu¬ 
tual mistake an instrument did not 
express the true intent of the par¬ 
ties, equity intervened by requiring 
them to reform the instrument so 
as to make it express what they 
intended. Spence, Equity, I, 633. 

5 Holdsworth, I, 245, notes 3 and 
4, citing Sel. Cas. Ch. (S. S.), case 
112; Hungerford v. Mayor of Wil¬ 
ton, (Henry VI), Cal. I, xxxix; 
Y.B. 39 Henry VI, Mich., pi. 35, in 
which case it is said that a person 
in possession of goods of another 


attainted for felony may be com¬ 
pelled in Chancery to make an in¬ 
ventory thereof at suit of one to 
whom such goods had been granted 
by the Queen. 

Bills to perpetuate evidence that 
might be lost were allowed in equity 
for similar reasons. Earl of Ox¬ 
ford v. Tyrell (Henry VII), Cal. 
I, cxx. 

6 Langdell’s article on Account, in 
Harv. L. Rev., II, 242-257; Ames, 
Parol Contr., in Sel. Essays, III, 
311; Hening, Beneficiary in As¬ 
sumpsit, in Sel. Essays, III, 344, et 
seq. 

1 1n account at law, no discovery 


478 HISTORY OF ENGLISH AND AMERICAN LAW 


the growth of equity jurisdiction over contracts, torts, and 
mortgages. 


§123. Jurisdiction of Equity over Contract .—Whether 
Chancery first intervened in contract cases by ecclesiastical 
Chancellors’ carrying over into Chancery the principles of the 
laesio ddei of the Ecclesiastical Courts, heretofore discussed , 1 
as Professor Holdsworth asserts , 2 or whether such interven¬ 
tion was made simply because justice demanded it in cases 
where the promise was not gratuitous but was based on a 
detriment incurred by the plaintiff, equity giving relief because 
no remedy existed at law before Assumpsit was introduced, 
as stated by Professor Ames, may be regarded, perhaps, as a 
moot question, though Professor Ames seems to have estab¬ 
lished his position quite conclusively. He shows that, in each 
of the five cases of which a record exists in which equity 
enforced parol contracts before they became enforceable at 
law by assumpsit, a detriment existed, the plaintiff having 
incurred expense or otherwise parted with property relying 
upon the promise of the defendant, and the Chancellor “upon 
an obvious principle of natural justice compelled the promisor 
to make reparation for the loss caused by his breach of prom¬ 
ise.” He further says: “But there seems to be no reason 
to suppose that the Chancellors, in giving relief, were influ¬ 
enced, even unconsciously, by any recollection of ecclesiastical 
traditions in regard to laesio fidei. It was so obviously just 
that one who had intentionally misled another to his detriment 
should make good the loss, that we need not go further afield 


could be compelled. It was inef¬ 
fective in cases of mutual accounts 
because judgment against the plain¬ 
tiff could not be had if it turned 
out that a balance was due from 
him. Malynes, Lex Mercatoria, Pt. 
Ill, ch. 17, Sel. Cas. Ch. (S. S.), 


§123. 1 See §99, ante. 

2 Holdsworth, I, 242, citing 8 Ed¬ 
ward IV, pi. 11, in which the de¬ 
fendant had promised per fIdem, to 
indemnify plaintiff. This is one of 
the three cases discussed by Pro¬ 
fessor Ames and cited hereafter. 


case 1. 


DEVELOPMENT OF EQUITY JURISDICTION 


479 


for an explanation of the Chancellor’s readiness to give a 
remedy upon such parol agreements.” 3 

If the Chancellor acted on the principle of laesio fidei of 
the Ecclesiastical Courts, he would enforce purely gratuitous 
parol promises as well as those based upon a consideration. 
Judge Holmes in an article, Early English Equity * cites the 
Diversity of Courts (Chancery) for this very proposition, it 
being there stated: “A man shall have remedy in Chancery 
for covenants made without specialty, if the party have suffi¬ 
cient witness to prove the covenants, and yet he is without 
remedy at the common law.” He added, however, that the 
contrary was soon after decided, citing Cary, 7, “Upon nudum 
pactum there ought to be no more help in Chancery than there 
is at the common law.” Professor Ames points out that the 
correct interpretation of the statement in Diversity of Courts 
is in accord with the extract from Cary, the first statement 
really meaning that some, not all, parol covenants were so 
enforceable. There is no instance of relief in equity upon a 
gratuitous parol promise before Lord Eldon. 5 Equity ceased 
to give relief in contract cases based on detriment when a 
sufficient remedy was given at law by assumpsit. That fact 


3 Ames, Parol Contr., in Sel. Es¬ 
says, III, 308, 309. 

Three cases in which Chancery 
enforced parol contracts prior to 
assumpsit, cited by Professor Ames, 
Hist, of Assumpsit, in Sel. Essays, 
III, 274, 275, are as follows: 2 Cal. 
Ch. II, (between 1377 and 1399), 
defendant promised to convey land 
to the plaintiff, who relying there¬ 
on paid out money in travelling to 
London and consulting counsel, and 
he sought a subpoena to compel 
defendant to answer for his deceit; 
Appilgarth v. Sergeantson, 1 Cal. 
Ch. XLI, (1438), in which case the 
defendant had obtained plaintiff’s 


money by promising to marry her 
and then married another in “grete 
deceit”; Y.B. 8 Edward IV, pi. ix, 
(the one case cited by Professor 
Holdsworth), in which the defend¬ 
ant, after inducing the plaintiff to 
become the procurator of his bene¬ 
fice by a promise to save him harm¬ 
less for the occupancy, secretly re¬ 
signed his benefice, “and the plain¬ 
tiff, being afterwards vexed for the 
occupancy, obtained relief by sub¬ 
poena.” 

4 L. Q. R., I, I 7 I-I 73 - 

5 Ames, Parol Contr., in Sel. Es¬ 
says, III, 308. 


480 HISTORY OF ENGLISH AND AMERICAN LAW 


is strong evidence for the conclusion that equity acted, as 
Professor Ames said, solely to do justice by compelling resti¬ 
tution in those cases, not to enforce an obligation based merely 
on a breach of faith. 

Thereafter, equity intervened in contract cases only to en¬ 
force specific performance. In a case decided in Henry VII’s 
reign , 6 in which Fineux, C. J., said that in case of a bargain 
to sell land for a price which was paid, the bargainee need not 
sue out a subpoena as he may have action on the case, Brook 
adds this note: “by this he will get nothing but damages, but 
by subpoena the Chancery can compel him (defendant) to 


6 Y.B. 21 Henry VII, pi. 66. Pro¬ 
fessor Ames, in his Cases in Equity, 
37, note 3, points out that the cases 
cited by Spence and Fry for the 
proposition that specific perform¬ 
ance was one of the most ancient 
forms of equitable relief, do not 
bear out that opinion. Only one 
reported case in which specific per¬ 
formance of contract was decreed 
appears before the middle of the 
sixteenth century, viz., Cokayn v. 
Hurst, Sel. Cas. Ch. (10 Sel. Soc.), 
No. 142, decided in 1458. In a case 
decided around 1400, specific per¬ 
formance was asked, but there is 
nothing to show what relief was 
given. In 1547, a .case referred to 
by Professor Ames, in which the 
court decreed that the defendants 
should make an absolute assurance 
for the release of a right in certain 
land, may or may not have involved 
specific performance of a contract. 
The statement above quoted from 
Brooke’s Abridgment, therefore, 
seems to be the first definite recog¬ 
nition of this doctrine after the 
case of Cokayn v. Hurst. 


See citations of several cases 
during the reigns of Elizabeth and 
James I, from 1569 to 1609, in 
Ames, Cases in Equity, 38, in which 
specific performance of contract 
was decreed. Coke objected strong¬ 
ly to the assumption of this juris¬ 
diction by Chancery, saying, in 
Bromage v. Gennings, 1 Roll R., 
368, that the enforcing of specific 
performance would subvert the in¬ 
tent of the covenantor, since it 
would deprive him of his option to 
perform or pay damages. In the 
same year, 1616, Coke was defeated 
in the conflict between courts of 
law and equity as to the power of 
Chancery to enjoin the parties from 
enforcing a judgment at law pro¬ 
cured by fraud. See Holdsworth, 
I, 246-250, for the history of this 
contest. Thereafter there was no 
question of Equity’s right to en¬ 
force specific performance of con¬ 
tracts where the remedy at law was 
inadequate. Ames, Cases in Equity, 
I, 38 . 


DEVELOPMENT OF EQUITY JURISDICTION 4 8i 

convey the estate, or imprison him, ut dicitur.” No definite 
rule was established as to when contracts would be specifically 
enforced until the eighteenth century, the Chancellors reserv¬ 
ing the right to decree specific performance in any case in 
which justice in the particular case seemed to demand it. 
Thus a contract to sell firewood 7 and a contract to build a 
house 8 were specifically enforced. In 1720, Chancery adopted 
the modern rule that specific performance could be had only 
in cases where money damages at law would not be an ade¬ 
quate remedy 9 excluding contracts to sell chattels, except 
where the chattel has an intrinsic value, from associations or 
otherwise, which would make money damages inadequate, 
and also excluding contracts calling for affirmative acts, and 
including contracts for the sale or mortgaging of land and 
negative contracts enforceable by injunction where money 
damages would not be adequate. 

§124. Jurisdiction of Equity over Torts .—Equity inter¬ 
venes to restrain the commission of threatened torts only 
where the remedy of damages at law would be inadequate, 
either because the tort, if committed, would work an irrep¬ 
arable injury for which money damages would not be an 
adequate compensation, or because a continuous tort is threat¬ 
ened which would necessitate repeated actions at law to recover 
damages as such damages would accrue, equity intervening in 
such cases by bill of peace to settle the controversy in one 
action by enjoining the commission of the tort and thus doing 
away with the need of repeated actions at law. 

Injunctions restraining threatened acts of waste were the 
first instances of interference by equity in tort cases. Professor 
Holdsworth says that bills to prevent waste were common in 

7 Kymburley v. Goldsmith, Henry 9 Cuddee v. Rutter, 2 W. & T., 

VI, Cal. I, xx. 416. 

8 Tyngelden v. Warham (Edward 
IV), Cal. II, liv. 


32 


482 HISTORY OF ENGLISH AND AMERICAN LAW 


Elizabeth’s time. 1 The earliest injunctions against waste were 
in favor of plaintiffs who had no remedy at law in two classes 
of cases: 1st, Where a remainderman was given an injunction 
against a tenant for life, though a second tenancy for life 
intervened between the first life estate and the remainder 
preventing the remainderman from maintaining waste at law 
so long as the second life estate continued, in accordance with 
the rule as stated by Coke that “No person shall have an 
action of waste unless he hath the immediate estate of inher¬ 
itance.” 2 2nd, In cases of equitable waste. The reason why 
equity intervenes in these cases has been discussed in an earlier 
chapter. 3 The cases in which equity stayed purely legal waste 
by injunction because it would cause irreparable injury to the 
inheritance for which money damages would be inadequate 
relief at law start with the beginning of the seventeenth cen¬ 
tury. 4 But the court was very slow in extending this principle 
to the corresponding cases of trespass in which like irreparable 
injuries were threatened by strangers. The first suggestion 
of allowing an injunction against a trespass is a statement 
by Lord Hardwicke in 1743, in which he says that the tres¬ 
pass will be enjoined if it continues so long as to become a 
nuisance. 5 Though exactly the same reasons exist for equity’s 


§124. 1 Holdsworth, I, 245, citing 
Spence, I, 671, 672. 

2 Co. Litt., 53b. In Anonymous, 
(1599), Moore 554, pi. 748, Sir 
Thomas Egerton said that he had 
seen a precedent in the time of 
Richard II to that effect. For later 
cases to same effect, see Ames, 
Cases in Equity, I, 467, note 2. A 
similar situation is illustrated by 
Lutterel’s Case, 1670, Precedents in 
Chancery, 50, in which an injunc- 
t’on to stay waste was granted in 
favor of an infant in ventre sa 


mere, who, of course, would have 
no action at law until after birth. 

3 See §49, ante. The earliest case 
of equitable waste referred to by 
Professor Ames is Bishop of Win¬ 
chester’s Case, decided prior to 
1638, Rolle, Abr., I, 380 (T. 3). 
See later cases cited by Professor 
Ames, Cases in Equity, I, 469, 
note 2. 

4 Horner v. Popham, (1701), 
Colles P. C. 1, 8, and other cases 
cited Ames, Cases in Equity, I, 461, 
note 1. 

5 Coulson v. White, 3 Atk. 21, 


DEVELOPMENT OF EQUITY JURISDICTION 


483 


interference in the one case as in the other, Lord Thurlow 
several times refused to extend the doctrine to cases of plain 
trespass not connected with waste. 6 A few years later, Lord 
Eldon allowed an injunction to restrain a tenant from taking 
coal from land retained by his landlord, the plaintiff, as well 
as from the land leased to the tenant, on the authority of a 
similar decision referred to by him as having been made by 
Lord Thurlow. Here waste and trespass were both involved 
in a very close way in the defendant’s wrongful act. 7 Three 
years later in a case in which a stranger had been in collusion 
with tenants to get them to cut and remove timber, Lord 
Eldon granted the injunction, following a similar decision 
made by Lord Thurlow. 8 Here waste by the tenants was 
closely involved with the wrong of the stranger, but Lord 
Eldon is more emphatic in his view that an injunction should 
issue to prevent irreparable mischief in the case of trespass 
as of waste. Finally in 1811, in a case of plain trespass 
involving the taking of stones from a quarry, and therefore 
an irreparable injury, he went the full way of extending the 
doctrine from waste to trespass. 9 

Injunctions restraining nuisances are based on the same 
principles. Equity intervenes only in cases where the injury 
from the maintenance of the nuisance would be irreparable, 
or where the nuisance will be continuous, involving repeated 
actions at law for damages as they accrue, equity intervening 
to prevent multiplicity of suits at law. In a case decided as 
early as 1583, the question of enjoining a nuisance which 
involved a diversion of a water course, was raised; but the 
court dismissed the bill because the plaintiff had brought an 


Ames, Cases in Equity, I, 487, 
note i. 

e Mogg v. Mogg (1786), Dickens 
670; Mortimer v. Cottrell, (1789), 
2 Cox 205. 

7 Mitchell v. Dors, (1801), 6 Ves. 
147 . 


8 Courthorpe v. Mapplesden 
(1804), 10 Ves. 290, Hamilton v. 
Worsefold, (1786), 10 Ves. 291, n. 
88 . 

9 Thomas v. Oakley, 18 Ves. 184. 


484 HISTORY OF ENGLISH AND AMERICAN LAW 


assize of nuisance at law. 10 In 1720, an injunction was 
granted in a similar case, apparently on the theory of a bill 
of peace. 11 The question of enjoining a nuisance arising 
from an interference with ancient lights was raised in a case 
before Lord Eldon in 1809. 12 The gradual development of 
the rules applied by equity in restraining nuisances continued 
during the last century, and constitutes part of the modern 
law of equity jurisdiction. 13 


§125. Mortgages in Equity. —The common law mortgage 
goes back to the gage of land or chattels, involving their 
actual transfer to creditors to secure debts. There are several 
instances of this kind in Domesday Book. 1 Glanville draws a 
distinction between a mortuum vadium, or mort gage, and a 
vivum vadium, or vif gage ; the creditor was required to apply 
the profits to the reduction of the debt in the case of a vif gage, 
but he was not required to do so in the case of the mort gage. 
In both cases, possession was transferred to and held by the 
gagee. Glanville regarded this keeping of the profits as a kind 
of usury, but apparently the debtor was bound, though the 
creditor’s goods might be forfeited to the crown if he died in 
his sin. 2 The mortgage might be for a term of years, with 
the express agreement that, if the mortgagor failed to pay 
at the end of the term, the mortgagee might hold the land 
or chattels as his own. In the absence of such an agreement, 


10 Osburne v. Barter, Choyce 
Cases in Ch., 176, Ames, Cases 
Trusts, I, 553. 

11 Bush v. Western, Precedents in 
Ch., 530. The bill was for a per¬ 
petual injunction to quiet plaintiff’s 
possession of the watercourse which 
had been diverted by the defendant. 
Ames, Cases in Equity, I, 553. 

12 Atty. Gen. v. Nichol, 16 Vesey 
338 . 


13 See cases in Ames, Cases in 
Equity, I, 555 - 625 - 
§125. 1 D.B., ii, 137, 141, 217, 

Poll. & Mait., II, 118, notes 1, 2, 
and 3, with other instances of gages 
of land soon after Domesday. For 
a fuller treatment of the develop¬ 
ment of mortgage from the Ger¬ 
manic and Anglo-Saxon wed or 
gage see Hazeltine, Gage of Land, 
in Set. Essays, III, 646, et seq. 

2 Poll. & Mait., II, 118, note 5. 


DEVELOPMENT OF EQUITY JURISDICTION 485 

it was apparently necessary for the creditor to get a judgment 
giving the debtor a fixed “reasonable” time to pay, and giving 
the land or chattels to the creditor if the debtor failed to pay 
as so provided. In case of a mortgage without a term of 
years, such a judgment fixing a reasonable time for payment 
and giving the mortgaged property to the creditor outright 
in case of default of such payment, could be obtained at any 
time. Pollock and Maitland say that the plea rolls of the 
thirteenth century have many cases of Christian gagees in 
possession of gaged land, and not a single case where one 
was required to account; and they conclude, therefore, that 
the mortgage, as distinguished from the vif gage, was gen¬ 
erally used by Christians as well as by Jews. 3 

This early form of mortgage disappeared at an early date, 
partly because of the necessity of transferring possession to 
the gagee, and principally because the gagee was not recog¬ 
nized as having an estate or possession which the law would 
protect by action for the recovery of the freehold. The reason 
for this was that the courts regarded the gagee as entitled to 
the debt, not the land; and therefore, in case of his ouster by 
the mortgagor or a stranger, he lost his security, his only 
remedy being to enforce the debt. 4 The development of the 
technical rules governing future estates in the fourteenth and 
fifteenth centuries made it impossible to give the fee to the 
mortgagee on the mortgagor’s default at the end of a term 
of years, which had been the practice in the thirteenth century, 
as that would involve the creation of a future contingent 
interest to spring up at a later day, putting seisin in abeyance. 
From about the beginning of the fifteenth century, the modern 
form of mortgage in the form of a conveyance in fee upon 
condition, title to revert to the mortgagor in case of payment 


3 Poll. & Mait., II, 118, 119. Jews 
were not prohibited from taking 
usury from Christians. Apparently 
Christians were willing to take the 


chance of possible punishment for 
the sin involved in these cases. 

* Poll. & Mait., II, 119, 120; 
Glanr., lib. X, cap. 8 , II. 


486 HISTORY OF ENGLISH AND AMERICAN LAW 


of the mortgage debt on the due day, title to be absolute in 
the mortgagee in case of failure to make such payment, became 
the regular form of mortgage of land. 5 

The law courts construed this condition of the mortgage 
literally in disregard of the obvious intention of the parties 
that the entire transaction had for its sole purpose the secur¬ 
ing of the debt. 6 The result was that, if the mortgagor was 
in default even for a day, he lost his property absolutely, and 
he still owed the debt, which could be enforced by personal 
judgment against him. The enforcement of the forfeiture, 
therefore, was a penalty pure and simple, a hardship resulting 
from enforcement of the condition according to its literal 
terms, it is true, but completely opposed to the intent of the 
parties and the real nature of the transaction. 

During this period, the line of cases was developing in 
which Chancery intervened in cases of fraud, mistake, and 
accident, as referred to in a preceding section. 7 8 The basis of 
the equity involved in these cases was to give effect to the 
true intent of the parties. At first, equity relieved from a 
forfeiture arising out of failure to pay a sum of money only 
where an excuse for non-payment was shown, such as acci¬ 
dent, 5 or, later on, mere negligence. 9 Still later the modern 
rule developed that equity will relieve from forfeitures in all 
cases of penalties. 10 The penalty arising from default in pay¬ 
ing a mortgage debt was an obvious case calling for equitable 
relief, in order that the true intent of the parties could be 
given effect. The right of the mortgagor to redeem in equity 
was established by the time of James I. 11 In equity, the mort¬ 
gagor was recognized as the true beneficial owner of the mort- 


5 Holdsworth, III, 112, notes 2, 3, 
4; Litt., §§332, 337 , 339 - 

6 Litt., §332. 

7 See §120, ante. 

8 Sel. Cas. Chan., (S. S.), No. 39; 

Atkinson v. Harman (Phil, and 

Mary), Cal. I, cxlii. 


9 Spence, Equity, I, 602, 603. 

10 Kerly, Equity, 145, 146. 

11 Kerly, Eg., 143, Holdsworth, I, 
244. In Bacon v. Bacon, Toth 133 
(1640), the court declares it will 
relieve a mortgagor “to the tenth 
generation.” 


DEVELOPMENT OF EQUITY JURISDICTION 487 

gaged land, the mortgagee holding the legal title only by way 
of security. The development and application of this doctrine 
resulted as a practical matter in making the law of mortgages 
a branch of equity jurisdiction. 

The modern law of mortgages as it prevails in the great 
majority of the states is based on the so-called lien theory, 
viz., that the mortgagee has a lien on the land to secure the 
debt, the ownership of the land, at law as well as in equity, 
being in the mortgagor. This is simply the adopting at law 
of equity’s view of a mortgage, that the mortgagor is the real 
owner, the mortgagee’s interest being limited to his security. 
The law, as distinguished from equity, has taken over prac¬ 
tically the entire body of law governing mortgages in equity 
so far as that law can be applied to purely legal forms and 
remedies. This is the most important and most striking part 
of the gradual absorption into the law of equitable principles, 
the merger of equity with the law, which has been going on 
with increasing momentum during the last hundred years or 
more. 12 The modern law of partnership is another striking 
illustration of this movement. 18 This movement has been 
greatly hastened by the merger of courts of law and equity 
in the same judges. It is a great pity that, when the first 
equity cases were referred by the Council to the Chancellor 
as its chief law officer, and sometimes to the law judges, also 
members of the Council, who were also frequently called on 
to act with the Chancellor in disposing of such cases, juris- 


12 Chancellor Kent says, Kent, 
Comm., IV, 158. "Their (Courts 
of Equity’s) influence has reached 
the courts of law, and the case of 
mortgages is one of the most splen¬ 
did instances in the history of our 
jurisprudence, of the triumph of 
equitable principles over technical 
rules, and of the homage which those 
principles have received by their 


adoption in the courts of law. . . . 
The courts of law have also, by a 
gradual and almost insensible prog¬ 
ress, adopted these equitable views 
on the subject, which are founded 
in justice and accord with the true 
intent and inherent nature of every 
such transaction.” 

18 See §114, ante. 


488 HISTORY OF ENGUSH AND AMERICAN LAW 

diction was not given to the law judges to give relief in per¬ 
sonam, and to exercise the different remedial functions later 
exercised by Chancery. We should then have had a single 
complete system of law; not two systems, one of them based 
on the defects of the other. However, the adopting by courts 
of law of the doctrines of equity, the abolishing of separate 
courts of equity in most of the states, making the courts 
of both law and equity, the permitting of equitable defenses 
in purely legal cases, the presiding judge being a judge in 
equity to determine any equitable question that may arise, 
have together gone a long way to bring about what is to a 
very considerable extent a single system of law and equity 
administered by a single court. 


CHAPTER XXII 


OUTLINE OF THE DEVELOPMENT OF PROCE¬ 
DURE, AND REFORMS OF THE NINETEENTH 
CENTURY 

§126. Early Procedure, Pleading, and Trial Practice .— 
The history of the different forms of action of the early law 
has been given in the preceding chapters. Real actions, start¬ 
ing with the ancient writ of right, including the assizes intro¬ 
duced by Henry II, novel disseisin, mort d’ancestor, and dar¬ 
rein presentment, and also the many writs of entry which 
later issued out of Chancery, are explained in some detail in 
Chapter IV. The writs by which a tenant for years was 
protected, warranty, quia ejecit, and ejectio drmae, and the 
development of the last named writ into the modern action 
of ejectment which displaced all real actions and became the 
one recognized action for the recovery of land by an owner 
entitled to possession, have been treated with considerable 
fullness in Chapter VI. The early actions relating to per¬ 
sonal property, starting with the ancient pursuit of the thief 
and developing into the quasi-criminal, quasi-civil appeal of 
larceny, detinue, trespass, trover, and replevin, are dealt with 
in the chapter on Personal Property. The action of debt and 
of assumpsit, and the development of the action on the case 
in its various forms are treated in the chapters on Contracts 
and Torts. 

Real actions were started by a summons to the defendant 
to appear. If he defaulted, a writ ( magnum cape ) was issued 
directing the sheriff to seize the land involved and summon 
the tenant a second time. If he then defaulted, the land was 
given to the demandant, but usually the defaulter could reopen 
the issue by a writ of right. 1 

§126. 1 Glanv., lib. I, cap. 7; 

Bracton, f. 367. 


HISTORY OF ENGLISH AND AMERICAN LAW 


In personal actions, the defendant’s appearance was com¬ 
pelled by distraint of his goods and chattels, and, that failing, 
by outlawry. But outlawry in civil cases was regarded as 
very harsh even in Bracton’s time. 2 Later on, “imprisonment 
upon mesne process” was the usual means of bringing a de¬ 
faulting defendant before the court. Instead of the obviously 
reasonable and expedient course of granting judgment against 
him by default in such cases, the courts obstinately refused to 
give judgment except upon his appearance. Bracton advised 
this course, 3 but his advice was not heeded until the nineteenth 
century when, by statute, the modern rule was finally adopted. 4 

In both classes of cases, essoins, or excuses for non-appear¬ 
ance, were common; and delay and complication in real actions 
could also be caused by vouching to warranty or by claiming 
a right to have a view. 5 Questions could always be raised as 
to the sufficiency of the acts of the sheriff in enforcing the 
process; and, in many other ways, real actions could be and 
were often made vexatious and lengthy. Personal actions 
were not so bad, as there were not so many occasions for 
delay. Rules relating to process continued after judges and 
lawyers had forgotten the reasons for them if any ever 
existed. 8 

The older methods of trial, by compurgation, by battle, and 
by the ordeal, have been explained heretofore. 7 We have seen 
how far the desire to escape from these forms of trial was 
responsible for the development of the new forms of action 
in the King’s Court, the possessory real actions triable by jury 
displacing the old propriatory writ of right, trespass displacing 

2 Bracton, f. 441, suggesting a 6 Holdsworth, III, 470. 

minor outlawry which will not in- 6 Y.B. 36 Hen. VI, pi. 21, pp. 25, 
volve a sentence of death. Poll. & 26. 

Mait., II, 591. 7 §26, note 2. For a detailed his- 

3 See abridged quotation from tory and description of these an- 

Bracton, Poll. & Mait., II, 592, cient methods of trial see Thayer, 
Bracton, f. 440b. Prelim. Tr. on Evid., ch. 1; Holds- 

4 2 Will. IV, ch. 39, §16. worth, I, 136-144. 


DEVELOPMENT OF PROCEDURE 


491 


the appeal of larceny, the action on the case in trover dis¬ 
placing detinue, and indebitatus assumpsit displacing debt. 
Trials by oath-helpers who were not real witnesses of the 
facts involved, by battle, or by the ordeal, were at best mere 
appeals to the supernatural, based on no search to find the 
truth or merit of the controversy, irrational, uncertain, and 
often dangerous to the parties. The new method of trial by a 
jury of the neighborhood introduced by the King’s Court of 
Henry II was a great step forward. Trial by compurgation 
or oath-helpers was reduced to very narrow limits in the 
King’s Court. It was always excluded where the king was 
a party, and therefore it could not be used there in criminal 
cases or in cases in the Exchequer. 8 It was not allowed in 
cases of injury by force, trespass, or deceit. 9 It was retained 
in the King’s Court in cases of debt without specialty, detinue, 
and account only, where the parties had no proof apart from 
the claim of the plaintiff and the denial of the defendant. 10 
Under these conditions, the oaths of eleven other men to the 
defendant’s veracity might be regarded as having some force. 11 
When trover and assumpsit displaced detinue and debt, and 
equity took over account, nothing was left, as a practical 
matter, of this archaic remnant of the old law. Nevertheless 
it continued in force, defendants successfully defending actions 
by oath-helpers as late as 1799 12 and 1824. 13 It was finally 
abolished by statute in 1833. 14 Trial by battle was forbidder 
by the church at the Lateran Council in 1215. It was in 
effect obsolete by the end of the thirteenth century, 15 though 
not finally abolished until 1819. 16 

We have seen how trial by jury in the King’s Court took 


8 Holdsworth, I, 139. 

9 Bl., Comm., Ill, 346, 347 - 

10 Thayer, Prelim. Tr. on Bvid., 

29. 

11 Y.B. 16 Edw. Ill, (ii), (R. S.), 
XVIII, XIX; Co. Litt., 295; Bl., 


Comm., Ill, 345, 346; Holdsworth, 
I, 139. 

12 Lea, 86. 

13 King v. Williams, 2 B. & C., 
538 . 

14 3 , 4 , William IV, ch. 42, §13. 

15 Holdsworth, I, 142. 


492 


HISTORY OF ENGLISH AND AMERICAN LAW 


the place of battle and compurgation, through the grand assize 
in propriatory actions, and through the possessory assizes in 
the new actions to recover possession of land. 17 In that con¬ 
nection, the nature of the trial by jury has been indicated. 
There was nothing like the modern trial in which the truth 
is sought through examination of witnesses before the jury 
who determine disputed questions of fact on the evidence so 
presented to them. The jury were witnesses as well as judges 
of the facts. They were called from the neighborhood where 
the disseisin, trespass, wrongful taking of goods, or other 
happening on which the controversy turned, had taken place. 
They were supposed to know the facts as men of the neigh¬ 
borhood, or to determine what the facts were and report by 
verdict at the ensuing session of the court, as the form of 
writ in an assize of novel disseisin, for instance, explicitly 
directed. Their verdict took the place of proof by oath- 
helpers or by battle. They represented the “sense of the com¬ 
munity” as to the fact in controversy at a time of simple 
things and mode of living when such facts were probably well 
known among the neighbors of the contending parties. 18 The 
history of the jury is found in the gradual development of 
their function as judges of the facts and the gradual disap¬ 
pearance of their function as witnesses. By the middle of the 
fourteenth century, the rule requiring a unanimous verdict 
was established, clear evidence of the growth of their function 
as judges of fact. 19 The different ways in which jurors might 
get information in order to arrive at a verdict in the succeed¬ 
ing periods give us a fair idea of how the jury developed. 
In Bracton’s time, they could inform themselves as best they 
could, seeking information from others if necessary. 20 Attest¬ 
ing witnesses to a deed in dispute were called with the jury. 21 

18 59 Geo. Ill, ch. 46. Holdsworth, I, 157; Thayer, Prelim. 

17 See §26, ante. Tr. on Evid., ch. 2. 

18 Poll. & Mait., II, 619-625; 18 Thayer, id., 86-88. 

20 Bracton, ff. 185b, 325. 


DEVELOPMENT OF PROCEDURE 


493 


Deeds and other documents were delivered to juries as evi¬ 
dence; and, in 1361, it was settled that such evidence had to 
be offered in open court, not to the jury in private. 22 Evi¬ 
dence was also brought to the attention of the jury by state¬ 
ments of counsel in opening the case; and the pleadings con¬ 
tained a good deal of evidence which thus became part of the 
record. 23 Though sworn witnesses were used in the four¬ 
teenth and fifteenth centuries, there was much to discourage 
such testimony. Besides the danger of physical violence to 
the witness which Professor Thayer points out, 24 it was re¬ 
garded as punishable maintenance for a witness to appear 
voluntarily and offer testimony, though it was justified if 
requested by the court, or if sought by the jury out of court. 25 
In the sixteenth century, the sworn testimony of witnesses in 
open court, subject to cross-examination, came into more gen¬ 
eral use. 26 In the seventeenth century, juries were still sup¬ 
posed to decide on facts within their own knowledge, though 
not testified to on the trial. 27 In 1650, the court said that a 
juror with special knowledge of the facts should be examined 
openly in court, not privately by the other jurors. 28 From 
that time, the modern conception of a jury as judges of the 
facts rather than as witnesses has continued without ques¬ 
tion, 25 and the modern trial based on the sworn testimony of 
witnesses has prevailed. 

The development of the law of pleading was closely related 
to the development of jury trials as outlined above. The 


21 Thayer, Prelim. Tr. on Evid., 
97-100. 

22 Thayer, id., 104, no, in. 

28 Id., 114, 115. 

2 *Id., 124-129. 

25 Fortescue, C.J. (1450), in Y.B. 
28 Hen. VI, 1. This statement of 
Fortescue not only shows the limi¬ 
tations on testimony of witnesses, 
but also the fact that juries were 
supposed to seek information out 


of court from those knowing the 
facts as late as 1450. Thayer, Pre¬ 
lim. Tr. on Evid., 128, 129. 

26 See Sir Thomas Smith, Repub¬ 
lic, 147, 148, cited Holdsworth, I, 
160; Coke, Inst., Ill, 163. 

27 Bushell’s Case, Vaughan’s Rep., 
147-149; Hale, Com. Law, 348; 
Holdsworth, I, 158. 

28 Bemet v. Hundred of Hart¬ 
ford, Styles, 233. 


494 


HISTORY OF ENGLISH AND AMERICAN LAW 


defendant having been brought before the court by process, 
as explained above, the next step was for the plaintiff’s counsel 
to formulate his declaration. Then followed the defendant’s 
demurrer or plea. The purpose of pleading was to formulate 
a distinct issue on which the decision of the case would turn. 
The parties by a succession of pleadings were required to 
eliminate everything not essential to the precise issue on which 
the case was to be decided. In other systems of law, this 
narrowing of the controversy to a definite issue by a succession 
of pleadings is not required. A general statement of the 
essential facts in the controversy by the parties is all that is 
necessary. The process of elimination and adjustment neces¬ 
sary to a decision is made by the court. 30 Mr. Holdsworth 
shows that the common law scheme of pleading probably 
resulted from the fact that trial by jury immediately succeeded 
the ancient formal trials of the early law, in which the pre¬ 
liminary matters of process and pleading leading up to the de¬ 
cision as to which party should be put to his proof were of chief 
importance. Trial by the jury simply took the place of trial 
by oath-helpers or by battle, and it was natural that the pre¬ 
liminary steps should retain much of their earlier character. 31 
But, as the verdict of a jury determined disputed facts only, 
not law and fact together as under the old forms of trial, and 
as such verdict was the result of reasoned action by men, not 
a judgment of God, it .was necessary to drop much of the old 
strict formalism and technicality in pleading, and to permit 
the parties to plead evidence for the jury’s benefit, and to 
allow considerable latitude in making their pleadings. Until 
toward the end of the period of the Year Books, all pleading 
was by parol in open court, counsel feeling their way to a 
correct statement of the cause of action or defense, often with 
the aid of suggestions made by the court. 32 Before the use 

29 See Salk., 405 (1702); R. v. 30 Stephen, Pleading (5th ed.), 
Sutton, 4 M. & S. 532; Holdsworth, 137, 138. 

I, 161. 31 Holdsworth, III, 473, 474. In 


DEVELOPMENT OF PROCEDURE 


495 


of witnesses, much of the evidence had to be presented in the 
oral pleadings of counsel, or in oral statements of evidence 
not amounting to pleadings; and the difference between state¬ 
ments of evidential facts and pleadings is not at all clear in 
the Year Books. 33 

Written pleadings start with the use of witnesses in the 
modern sense, making it feasible for counsel to settle the form 
of their pleadings and so to arrive at an issue out of court in 
written form, the need of pleading or stating evidence and of 
assuming responsibility therefor by counsel ending with proof 
by witnesses. In 1563, a statute provided for the calling of 
witnesses by process, 34 and their use was regular and usual 
in the latter half of the sixteenth century. 35 Thereafter, plead¬ 
ing and proof assumed their modern relation to one another, 
and issues were raised and tried in the modern way. 


§12/. Development of Criminal Procedure .—The nature 
of the appeal of larceny as a criminal action actually prose¬ 
cuted by the person injured rather than by the state, has been 
discussed in the chapter on Personal Property. 1 These ap¬ 
peals were also actions in tort, involving the recovery of the 
stolen property. But the other appeals for the more serious 
crimes, homicide, rape, arson, robbery, and larceny when the 
chattel stolen had disappeared, were entirely penal, involving 
no recovery of property or damages. 2 We have seen why the 
appeal of larceny as an action to recover personal property 
was displaced by trespass for the recovery of the value of the 
property. 3 The gradual displacement of criminal appeals by 


this way the framing of the issue 
through the successive pleadings of 
the parties took the place of the 
technical rules of the old law which 
had to be followed in order to de¬ 
termine who should be put to his 
proof. 

32 Holdsworth, III, 475-477- 


33 See illustrations from the Year 
Books, Holdsworth, III, 481, 482. 

34 5 Eliz., ch. 9, §12. 

35 Sir Thomas Smith, Republic, 
Bk. 2, ch. 18. 

§127. 1 See §§77, 78, ante. 

2 Ames, Led. on Leg. Hist., 47,48. 

3 Note I, supra. 


496 HISTORY OF ENGLISH AND AMERICAN LAW 


the process of indictment through the accusing jury must now 
be considered. 

The accusing jury dates back to the assize of Clarendon, 
1166. Twelve knights or good and lawful men of each hun¬ 
dred and four lawful men of every vill, or township, con¬ 
stituted the jury. In the sheriff’s turn, the four representa¬ 
tives of each township made presentments of those suspected 
of crimes in their respective townships to the twelve jurors 
of knights or freemen representing the hundred, and the twelve 
made presentments to the sheriff of such of the presentments 
made to them as they cared to “avow” or adopt as their own. 4 
Before the justices in eyre, the jury of twelve men represent¬ 
ing each hundred made presentments of persons suspected of 
crimes. The oaths of the juries of four representing the four 
townships nearest to the scene of the alleged crime were then 
taken, they usually agreeing with the twelve, because the 
twelve had probably acted on information from them. The 
judges had the rolls of the coroner’s court and of the sheriff’s 
court which informed them of all appeals started in the county 
court and of all coroner’s inquests, and were, therefore, in a 
position to check up the grand jury pretty closely. 5 Before 
1215, the accused person was forced to submit to the ordeal, 
and his guilt or innocence was determined in that way by judg¬ 
ment of God. But the Lateran Council of 1215 ended the 
ordeal, and it at once disappeared as a method of trial in Eng¬ 
land. 8 Thereafter, if the accused put himself on the country, 
in other words accepted trial by jury, the jury that had indicted 
him was at once called on to give a verdict, without further 
trial; and, if they declared him guilty, he was punished accord¬ 
ingly. But, if he refused to accept jury trial, the law didn’t 
know what to do with him. Bracton suggested the obvious 
remedy of trying him by jury whether he consented or not; 

4 Britton, I, 178-182; Poll. & Mait., 8 Thayer, Prelim. Tr. on Evid., 
II, 640. 34, 39; Poll. & Mait., II, 596, 597; 

6 Poll. & Mait., II, 643. Holdsworth, I, 142, 143. 


DEVELOPMENT OF PROCEDURE 


497 


but the strong feeling of the time that a man should not be sent 
to his death for a felony on mere human “testimony,” instead 
of on a conviction by the ordeal with its supernatural element, 
prevented this. 7 Instructions of the Council to the judges in 
1219 directed them to keep such persons imprisoned, permit¬ 
ting them to abjure the realm in the less serious cases, and 
to find surety to keep the peace if the offenses charged were 
slight. From 1250 on, it is probable that consent to jury trial 
was forced by rigorous imprisonment; and, in 1275, a statute 
to that effect was enacted. 8 A little later, Britton says they 
are to be ironed, lie on the ground in the worst places, and have 
a little bread and a little water on alternate days. 9 Still later, 
it was held that the prisoner should be weighted down with 
all the iron he could bear, the peine forte et dure, in practical 
effect enforcing trial by jury in all cases. 10 

In the fourteenth century, doubt as to the justice of allow¬ 
ing the indicting jury to try the accused developed; and, in 
1351, a statute permitted the accused to challenge any indictor 
as one of his trial jurors. 11 When the eyres came to an end, 
criminal jurisdiction for the county passed to the justices of 
the peace and justices of assize. Thereafter twenty-three out 
of twenty-four men drawn by the sheriff from the entire 
county constituted the grand jury; and petty or trial juries 
were also drawn from the county at large. From that time, 
men indicted for crimes were tried by petty juries, the devel¬ 
opment of trial by witnesses in criminal cases being the same 
as in civil cases, as outlined in the preceding section. 


7 “No one is to be convicted of 
a capital crime on testimony,” Leg. 
Hen. 31, §5; Poll. & Mait., II, 647. 

6 Stat. Westtn., I, ch. 12. 

9 Britton, I, 26. 

10 Thayer, Prelim. Tr. on Bvid., 

75. The piene forte et dure con¬ 
tinued to be part of English law 
theoretically at least until 1772, 


when a statute provided that stand¬ 
ing mute should be equivalent to 
a conviction. In 1827, the Stat¬ 
ute, 7, 8 Geo. IV, ch. 28, provided 
that in such case a plea of not 
guilty be entered and the trial pro¬ 
ceed, adopting in effect Bracton’s 
suggestion nearly 600 years after 
Bracton’s time. 

1125 Edw. Ill, St. 5, ch. 3. 


33 


498 HISTORY OF ENGLISH AND AMERICAN LAW 


No such difficulty existed in disposing of the lesser offences 
not amounting to felony. The presentment was followed by 
an amercement without anything like a trial. The accused 
person was allowed no denial or plea. 12 At the sheriff’s turn, 
presentments for misdemeanors were disposed of in the same 
way; men indicted for felony were sent to the itinerant jus¬ 
tices. 13 By the latter part of the thirteenth century, this prac¬ 
tice was modified by allowing the defendant a jury trial if the 
crime charged was punishable by imprisonment. 14 For a long 
time, many presentments of petty crimes were not traversable 
before local courts. 15 

Justices of the peace developed in the fourteenth century 
as an extension of the practice of appointing judges to act by 
direct royal commission. 10 They were first provided for in 
1327 by a statute which specially intrusted them with pre¬ 
serving the peace. 17 They were empowered to hear and deter¬ 
mine felonies and trespasses in 1344. 18 In 1360, “one lord 
and with him three or four of the most worthy in the county” 
were assigned to each county with power to arrest and im¬ 
prison wrongdoers or persons suspected of crime, as well as 
to hear and determine felonies and trespasses committed within 
the county, and their title, justices of the peace, dates from 
about that time. 19 

The duty of arresting criminals, at first placed upon the 
public, all being required to respond to the hue and cry, and 
resting specially on sheriffs and constables, devolved upon 
justices of the peace. The history of arrest with and without 


12 Poll. & Mait., II, 609. 

18 Holdsworth, I, 43. 

14 Poll. & Mait., II, 650, referring 
to an example in Northumberland, 
Assize Rolls, 340. 

15 Palgrave, Commonwealth, 268; 
Hale, Pleas of the Crown, pt. 2, ch. 
19 . 


18 As to judges by commission, 
see §50, ante. 

17 1 Edw. Ill, St. 2, ch. 16. 

18 18 Edw. Ill, St. 2, ch. 2. 

19 34 Edw. Ill, ch. 1; Bl., Comm., 
L 338» 339J Holdsworth, I, 125. 


DEVELOPMENT OF PROCEDURE 


499 


warrant is found in their use of it. 20 Their powers as com¬ 
mitting magistrates in preliminary examinations originated 
with statutes of the reign of Philip and Mary. 21 At first, 
these proceedings were inquisitorial in character, and were 
used to get evidence to aid the prosecution; and this continued 
to be their character, witnesses being examined in secret, and 
the results could not be seen by the prisoner or his counsel. 
It was not until 1849 that a statute was enacted providing 
that witnesses for the prosecution should be examined in the 
presence of the accused. 22 

The court of Quarter or General Sessions was and still is 
a court of the justices of the peace held four times a year in 
each county. It had and still has jurisdiction over all crimes 
except treason, though cases of special difficulty are sent to 
the assizes, as are also capital cases as the result of a custom 
which grew up in the eighteenth century. Many towns have 
separate courts of Quarter Sessions. Courts of Petty Sessions 
originated with statutes giving to two or more justices of the 
peace summary power to inflict penalties for violations of 
those statutes. The law relating to this summary jurisdiction 
was codified in 1848. 23 The powers of petty sessions have 
since been extended to include petty crimes and crimes of 
children. 24 It is obvious that these courts of Justices of the 
Peace have had jurisdiction over all misdemeanors and most 
felonies since they were established. 


§128. Outline of Nineteenth Century Reforms in Proce¬ 
dure .—In the first half of the nineteenth century, in England 
and the United States, the common law actions, or actions 


20 For an account of the history 
of the law of arrest on suspicion, 
etc., see Holdsworth, I, 131, 132. 

21 1, 2, Phil. & Mary, ch. 13. 

22 11, 12 Viet., ch. 42. Stephen, 
Hist. Critn. L., I, 221-228; Holds¬ 
worth, I, 133, 134. 


23 11, 12 Viet., ch. 43. The term 
“Petty Sessions” was not used until 
the following year, 12, 13 Viet., ch. 
18, preamble. 

24 Stephen, Hist. Critn. L., I, 124- 
126; Maitland, Justice and Police, 
123-129, cited Holdsworth, I, 130. 


500 HISTORY OF ENGLISH AND AMERICAN LAW 


at law, most of them fully established centuries before, were 
as follows: ejectment, for the recovery of land, taking the 
place of the ancient real actions; trespass, to recover damages 
for injuries to real property not amounting to waste, and for 
injuries to personal property not amounting to conversion; 
trespass for wilful personal injuries, taking the form of 
assault and battery; trespass on the case or “case” simply, 
including actions for waste, viz., “case in the nature of waste,” 
actions for negligent injuries of person or property, actions 
based on nuisances, fraud and deceit, libel and slander and 
malicious prosecution; trover and conversion, developing from 
an action on the case for wrongful conversion of personal 
property; actions ex contractu, including covenant, debt, and 
assumpsit; replevin, which had finally become an action to 
recover chattels wrongfully detained rather than their value 
in money, and which in the United States was generally used 
instead of detinue. The history of the common law is very 
largely the history of the development of these actions, as is 
apparent from the preceding chapters in which the origin and 
growth of these actions are explained. 

The common law system of pleading, which developed with 
the growth of trial by jury as explained in § 126, and which 
had attained a fixed and rigid form incident to the develop¬ 
ment of these forms of action, was in full operation in Eng¬ 
land and the United States during the first half of the last 
century. The plaintiff had to select his form of action and 
draw his declaration in close conformity with the strict rules 
of this system; the defendant then interposed his plea, and 
then followed a long series of pleadings by plaintiff and 
defendant, including the replication, rejoinder, surrejoinder, 
rebutter, and surrebutter, until finally the ultimate issue by 
this process of elimination was arrived at, and the parties went 
to trial on this issue. The opposing party could always demur 
to any pleading. Narrow questions of mere form having no 
relation to the merits of the controversy very frequently took 


DEVELOPMENT OF PROCEDURE 


501 


up the time of courts and counsel in working out the rules 
of this game. 1 

The rules governing the joinder of parties and the relief 
given at common law as between the parties were part of this 
narrow technical system, following the rules of the game with 
little regard to substantial justice. Joint plaintiffs had to be 
jointly interested in the subject matter of the action, so that 
the interest of one was identical in all respects with the interest 
of the other. Joint defendants had to be jointly liable in the 
same way. Absolute unity in joint plaintiffs and joint defend¬ 
ants was essential, and if that unity existed they were gen¬ 
erally necessary parties. There was no such thing as some 
of the defendants becoming liable at different times on differ¬ 
ent instruments. Separate actions against each were neces¬ 
sary in such cases. Makers and indorsers of a bill or note, 
for instance, could not be sued together until a statute so 
provided. No judgment could be given against one defendant 
differing from the judgment against the others; no judgment 
by one plaintiff against another plaintiff or by one defendant 
against another defendant could be thought of in this system, 
the essence of which was a strict contest between two opposing 
parties each strictly identified and unified in its claim and 
defense, leading to a definite issue to be tried and disposed of, 
all in accordance with long established rules. 2 

Side by side with this narrow technical system of formal 
pleading, trial, and judgment, there had developed the equity 
system of pleading and practice. The development of equity 
jurisdiction as a supplementary system of remedial justice, 
and its relation to the common law, has been outlined in Chap¬ 
ter XXI. The system of practice and pleading in equity 
differed as radically from the law system as did its substantive 
side. The pleading by which the complainant sought relief 

§128. 1 Burrill, Practice, I, 80,81; 2 Pomeroy, Remedies and Re- 

Baylies, Code Pleading and Prac- medial Rights, §§38, 41. 
tice, (2nd ed.), 11-13. 


502 


HISTORY OF ENGLISH AND AMERICAN LAW 


in equity was the bill. There was only one bill in equity, 
though it assumed various forms with names indicating their 
purpose, as bills of interpleader, bills of peace, bills of dis¬ 
covery, etc. The bill set forth very fully the facts on which 
the complainant based his prayer for relief, setting forth 
evidential facts as well as the facts essential to his remedy, 
so that it might be a basis for an examination of the defendant 
by which discovery of evidence from the defendant could be 
secured. The stating part was followed by the charging part, 
which in turn was followed by the interrogating part. 3 As 
Bowen, L. J., put it: “A Bill in Chancery was a marvellous 
document which stated the plaintiff’s case at full length and 
three times over. There was the first part in which the story 
was circumstantially set forth. Then came the part which 
“charged” its truth against the defendant—or, in other words, 
which set it forth all over again in an aggrieved tone. Lastly 
came the interrogating part, which converted the original alle¬ 
gations into a chain of subtly framed inquiries addressed to 
the defendant. 4 

The defendant then pleaded, either by demurring in case of 
defects appearing on the face of the bill, or by putting in a 
plea if defects not appearing on the face of the bill, such as 
lack of jurisdiction or defect of parties, reduced the case to 
a single point. If he could not demur or plead to the bill, 
he put in an answer in confession and avoidance or by way 
of denial of the allegations of the bill. The complainant then 
put in a replication, which was the final plea allowed in equity. 
This denied the allegations in the answer, its object being 
formally to create an issue. Proofs were then taken out of 
court, and the case was tried on the pleadings and proofs 
taken in this way. 5 

The judgment in equity might be made in favor of some 

8 Vansantvoord, Pleadings, 33-38; * Administration of the Law, 290, 

Baylies, Code Pleading and Pr., 13- 291, cited Holdsworth, I, 404. 

14- 5 See note 3, supra. 


DEVELOPMENT OE PROCEDURE 


503 


of the plaintiffs and against some of the defendants in entire 
disregard of the unity of right and obligation or liability which 
was essential at law. It was quite immaterial whether a party 
was before the court as a party plaintiff or party defendant. 
The court gave judgment in such way as to settle the entire 
controversy between the parties, giving to each one individu¬ 
ally his equitable rights regardless of form. It had full power 
not only to grant relief to some plaintiffs and withhold it from 
others, and against some of the defendants and not against 
others, but to settle equities between coplaintiffs or between 
codefendants. 6 

Thus two systems of law differing radically in substance, 
each with a distinct court of its own, and each with a distinct 
procedure and method of pleading, trial, and judgment, existed 
side by side, together constituting the sovereign law of the 
state. We have seen that equity intervenes generally because 
there is no relief at law or because the remedy at law is inad¬ 
equate. If a party by mistake sued at law when his remedy 
was in equity, the action could not be transferred because of 
the difference in the courts, procedure, and rules of pleading. 
He had to start all over again in equity. If, in any case at 
law, equities were involved which would constitute a bar in 
equity to the enforcement of the plaintiff’s claim, or, if full 
relief could be had in equity only, it was necessary for the 
defendant to bring an action in equity to restrain the plaintiff 
from prosecuting the action at law, bringing the plaintiff into 
equity in order that justice might be done and the entire 
controversy settled on equitable principles. In such cases, 
equity always had the last word, and the law of the land was 
the law as laid down by equity rather than by the common 
law courts. All this involved delay, expense, duplication of 
actions, and the scandal of different results in the same case 
if brought in one court instead of in the other. 

This was the situation at law and in equity when, in 1848, 


6 See note 2, supra. 


504 


HISTORY OF ENGLISH AND AMERICAN LAW 


New York adopted the Code of Procedure, now generally 
known as the Old Code. The fundamental principles of this 
statute, and the leading reforms which it purported to accom¬ 
plish were: ist, The consolidation or merger of procedure at 
law and in equity, the principal courts becoming courts of law 
and equity, without difference in actions or procedure so far 
as that result was consistent with the retention unchanged of 
the substantive side of law and equity, and with the retention 
of trial by jury at law and certain other judicial institutions. 
2nd, The substitution of a single action, a “civil action,” for 
all the different forms of action at common law. 3rd, The 
abolishment of the technical rules of the common law and the 
substitution therefor, so far as the nature of the subject- 
matter would permit, of the equitable rules of parties, plead¬ 
ing, and final judgment. 

1 st. As to the merger of law and equity. The Code pro¬ 
vides: “The distinctions between actions at law and suits in 
equity, and the forms of all such actions and suits heretofore 
existing, are abolished; and there shall be in this State here¬ 
after but one form of action for the enforcement or protection 
of private rights and the redress of private wrongs, which 
shall be denominated a civil action.” 7 It is now established 
beyond question that this provision accomplishes what its lan¬ 
guage clearly expresses, a merger of all law and equity actions 
into a single action, started always in the same way, subject 
to the same rules of pleading and of parties, and governed 
by the same principles in the final relief given, whether the 
rights enforced are legal or equitable. The code makes no 
change in the substantive rules of the common law or equity, 
nor does it change the character and quality of the relief 
given. It has simply brought law and equity together in their 
actual practice and enforcement as coordinated branches of the 

7 N. Y. Code of Procedure, §69. ished and its jurisdiction and pow- 
By the Constitution of 1846 (N. Y.) ers were vested in the Supreme 
the Court of Chancery was abol- Court. 


DEVELOPMENT OF PROCEDURE 


505 


law of the land as a single system, administered by the same 
judges in a single action, under the same rules of pleading and 
practice. Legal rights and equitable rights under the distinctive 
rules of common law and equity remain as distinct as ever, and 
the same facts have to be pleaded and proved in each case to 
get the relief to which the party is entitled, whether at law or 
in equity, as before the Code; but the same rules as to joinder 
of parties, the same rules of pleading (requiring simply the 
statement of the facts on which the plaintiff’s substantive right 
to relief in the particular case depends), and the same practice 
in the making of the final judgment by which the relief sought 
is granted, will apply to the case whether the law involved 
and the relief sought is legal or equitable. 8 The relief granted, 
like the substantive law involved, continues to be legal or 
equitable as before the Code. But, in the granting of that 
relief, the principles of equity as to parties, permitting a judg¬ 
ment giving relief to each individual party as justice requires 
in entire disregard of the common law principle of unity of 
interest or liability of joint parties plaintiff or defendant, 
prevails in all cases. 

In those instances in which the old action at law and the 
old action in equity would reach different results, so that a 
conflict existed in the substantive law as to a party’s rights, 
as in partnership and mortgage cases, equity always had the 
last word, and its law prevailed, as in recognizing and en¬ 
forcing the real ownership of the mortgagor as against the 
mortgagee of land. It is natural that, as a result of this 
merger, the equity view should be adopted as the rule at law 
as well, the old rule at law being tacitly dropped, since in 
every case in which the question might arise under the merged 
procedure the equity view must prevail. We have seen how 
this has resulted in the substantial adoption into the law of 
the equitable rules governing mortgages and partnerships, and 

8 Pomeroy, Remedies and Rem. 

Rts., 71-90. 


506 HISTORY OF ENGLISH AND AMERICAN LAW 

the same merger of substantive law has been going on where 
similar conflicts formerly existed. 9 In other cases, of trusts, 
specific performance, injunction, and the other numerous situ¬ 
ations of equitable relief supplementary to the common law, 
all have been brought together with the common law as a 
complete, coordinated, and single system as a result of the 
merger accomplished by the Code. 

It goes without saying that the evils pointed out above 
which were caused by separate systems of law and equity 
administered by separate courts have been effectually removed 
by the Code. 

The retention of trial by jury in the “civil action” under 
the Code in those cases in which legal rights as distinguished 
from equitable are being enforced, has served to keep alive a 
difference in form to that extent between actions enforcing 
such rights and actions enforcing equitable rights, and has 
resulted in the division of the Supreme Court in New York 
into a law side with a separate calendar of jury cases triable 
at Trial Term, and an equity side with cases triable without 
a jury at Special Term. But this is a detail merely, arising 
out of the preservation of jury trials in the civil action involv¬ 
ing common law substantive rights. Equity questions arising 
at trial terms in jury cases must be disposed of by the judge 
as a court of equity, and relief at law is given in cases at 
Special Term if such relief is called for. The court is a true 
court of both law and equity, with the same general rules of 
procedure, trial, and judgment practice, except for jury trial 
as explained above. 

2nd. The substitution of a single action in the place and 
stead of the many actions at law, is necessarily involved in the 
discussion of the merger of all these actions as well as equity 
actions in the “civil action” provided for by the Code, as ex¬ 
plained above. Of course, this has caused no change in the 
substantive law. It is still the fashion to speak of an action 


•See §125, ante. 


DEVELOPMENT OF PROCEDURE 


507 


in trespass, conversion, assumpsit, debt, etc. This is a matter 
of mere terminology and does no harm, and is justified by 
the fact that the terms used apply to the substantive rights 
involved, though strictly the same action, the “civil action'’ 
of the Code, is brought in every case. 

3rd. Reform in procedure and pleading is accomplished by 
applying to the new “civil action” the general principles of 
pleading and practice used in equity, with the elimination of 
what was objectionable in the former equity practice. In 
discussing the merger of law and equity practice, we have 
seen how the Code has applied the practice in equity to ques¬ 
tions of joinder of parties, and to the form of judgment in 
giving relief to all parties, plaintiffs or defendants, as justice 
demands, discarding the principle of unity of joint parties of 
the common law. In pleading, a complaint setting forth the 
facts of the plaintiff’s case is followed by the defendant’s 
demurrer or answer. The answer may contain a counter¬ 
claim in contract, or in tort if it arises out of the same trans¬ 
action set forth in the complaint. The final pleading is the 
plaintiff’s “reply,” in effect an answer to the cause of action 
set forth in a counterclaim, but allowed in the absence of a 
counterclaim only in special cases on order of the court. From 
these pleadings, the issue is deduced in the trial without going 
through the long series of pleadings of the common law sys¬ 
tem. But the charging part of the bill in equity has been 
eliminated in Code pleading, and discovery through interroga¬ 
tories has been expressly abolished, its place being taken by 
examination before trial on motion. If the facts alleged in 
the complaint constitute a good cause of action, whether at 
law or in equity, regardless of what the plaintiff has called 
his action, and even though he asks for the wrong relief, he 
will not be turned out of court. Amendments before verdict 
or decision are freely allowed. 

The New York Code in all fundamentals was adopted by 


508 HISTORY OF ENGUSH AND AMERICAN LAW 


twenty-two other states and territories prior to 1875. 10 Other 
states have modified the old common law and equity practice 
by adopting the more important changes made by the Code. 
Several states still retain separate courts of law and equity, 
and a very few states retain much of the technicality of com¬ 
mon law procedure and pleading. The details of the law of 
practice and pleading in the different states must be looked 
for in the statutes of the various states and in the modern 
treatises on practice and pleading. 11 

In England, a half-hearted attempt at reform in procedure 
was made in the Common Law Procedure Act of 1854. It 
attempted to give to courts of law certain powers of granting 
equitable relief in cases arising at law, and to give to equity 
power to decide all questions of law that might arise in equity 
cases, and also to award damages and in other ways to give 
relief distinctively legal rather than equitable. 12 This statute 
was a complete failure. It was recognized that reorganizing 
the courts as combined courts of law and equity was a neces¬ 
sary part of any comprehensive reform. The first Judicature 
Act came into operation in 1875. 13 This statute, with subse¬ 
quent amendments, consolidated the English common law and 
equity courts into a single court, called the Supreme Court 
of Judicature of England. This was divided into two parts, 
the High Court of Justice, and the Court of Appeal. 14 The 
High Court of Justice was composed of the existing judges 
of the King’s Bench, Common Pleas, the Exchequer, the Court 
of Chancery, the Probate and Divorce Court, and the Ad¬ 
miralty Court, and it was given the jurisdiction formerly exer¬ 
cised by those courts. 15 The Act provides that law and equity 
are to be administered concurrently, in accordance with rules 

10 Pomeroy, Remedies and Rem. 12 17, 18 Viet., ch. 125, §§68, 79, 83. 

Rts., 28. 13 36, 37 Viet., ch. 66, §3. 

11 See Report N. Y. State Bar 1* Id., §4. 

Assn., 1912, pp. 806-1048, for sepa- 15 Id., §§5 and 8, 16 and 17. 
rate summaries of law of practice 
in many of the states. 


DEVELOPMENT OF PROCEDURE 


509 


therein stated. 16 It provides that “in all matters, not herein 
before particularly mentioned, in which there is any conflict 
or variance between the Rules of Equity and the Rules of the 
Common Law, with reference to the same matter, the Rules 
of Equity shall prevail. 17 For convenience of business, the 
High Court was divided into the Chancery Division and the 
King’s Bench Division, and the Probate, Divorce, and Ad¬ 
miralty Division, any judge of the court being subject to 
assignment in either division. 18 

The other branch of the Supreme Court of Judicature is 
the Court of Appeal, made up of the Lord Chancellor, the 
Master of the Rolls, the Lord Chief Justice, the President of 
the Probate, Divorce, and Admiralty Division, any person 
who has been Lord Chancellor if he consent to act on request, 
and five judges of the Court of Appeal whom the crown may 
appoint. 19 The House of Lords continues to be the final court 
of appeal, as appeals from the Court of Appeal may be taken 
to the House of Lords. 

The Judicature Acts contain a code of procedure simplify¬ 
ing practice and pleading, and establishing a single system for 
all branches of the Supreme Court of Judicature, which retains 
what is best of the old systems in the different courts. 29 A 
single system of pleading in simplified form, without the rigid¬ 
ity and technicality of pleading at common law, has taken the 
place of the old systems. Bowen, L. J., says of the effect of 
these changes that “it is not possible for an honest litigant to 
be defeated by any mere technicality, any slip, any mistaken 
step in his litigation. . . . Law has ceased to be a scientific 
game, that may be won or lost by playing some particular 
move.” 21 


i« Id., §24. 

17 Id., §25. 

18 Id., §31; 4 7 , 48 Viet., ch. 61, 
§§5 and 6. 

™Id., §§6 and 8. 

20 Id., §23; 39, 40 Viet., ch. 59, 


§17; 44, 45 Viet., ch. 68, §19; 56, 57 
Viet., ch. 66; 58 Viet., ch. 16, §4. 
On the English Judicature Acts 
generally see Holdsworth, I, 408- 
416. 

21 Administration of the Law, 310. 




















INDEX 

(References are to pages) 


A 

ABDUCTION. 374 

ACCIDENT, see INEVITABLE ACCIDENT, NEGLIGENCE 

ACCOUNT, action of, by third person as beneficiary.435 note I 

ACCUSING JURY, see GRAND JURY, INDICTMENT. 85 

ADMINISTRATION OF PERSONAL ESTATE. 361,362 

Kin had charge, Anglo-Saxon period. 361 

13th century, Kin had charge under direction church. 361,362 

The ordinary . 361,362 

ADMINISTRATION, origin of; statute, 1357. 362 

ADMIRAL’S COURT . 444 

ADVERSE POSSESSION, OF CHATTELS, see LIMITA¬ 
TIONS; POSSESSION . 333 

ADVOWSONS . 275 

“AFFEAR” OR FIX AMERCEMENTS. 379 

AGENCY . 439,442 

Early History . 439,440 

Undisclosed principal. 440, 442 

AGREEMENT, see ASSUMPSIT, CONTRACT 

AIDS . 60,61 

AMBULATORY, Saxon wills not ambulatory. 354 

Ambulatory in 13th century. 358 

AMERCEMENTS . 378,379 

ANGLO-SAXON LAW . 1-42 

Basis of common law.1,2,41,42 

ANNUITY, writ of, to enforce rent charge. 276 

ANIMALS, trespass by. 390,391 

ANIMUS FURANDI . 377 

APPEALS OF FELONIES, early law. 495 

Displaced by process of indictment. 496,497 

APPEAL OF LARCENY. 3 * 3 , 3^5 

ARREST . 498,499 

ARSON. 374,375 

ASCENDANTS AS HEIRS. 348 , 349,352 

ASSAULT AND BATTERY, before development of trespass.. 395,396 

After trespass, 1250. 396 

Distinguished from negligence. 4°5 

ASSIGNMENT OF CHOSES IN ACTION. 333,334 

Transfer of rights of entry (actions to recover land)... .334,33S, 336 
Transfer of rights of action in conversion and replevin, and 
in contract . 335 , 336,337 





































HISTORY OF ENGLISH AND AMERICAN LAW 


512 

ASSIGNMENT OF CHOSES IN ACTION —Continued 

Transfer of negotiable paper. 337 

Nature of rights of action as property and their transfer as 

such . 338 , 344 

ASSIGNMENTS OF TERMS, statute of frauds. 146 

ASSIZE OF NOVEL DISSEISIN .82,100-103 

ASSIZE OF NUISANCE. 402 

ASSIZE UTRUM . 84 

ASSUMPSIT, special . 414,421 

First assumpsits actions in tort, negligence. 414,416 

Deceit for false warranty. 416,417 

Deceit for breach of contract. 417,418 

Assumpsit an action in contract, detriment. 118,419 

Indebitatus assumpsit based on benefit or quid pro quo, con¬ 
current with debt. 420,421 

Implied assumpsit, quantum meruit, on promises implied in 

fact . 421-423 

Indebitatus assumpsit to enforce quasi contracts. 423-427 

ATTORNMENTS . 161 

B 

BAILMENTS, detinue by bailor vs. bailee. 321-325 

Detinue sur trover. 325,326 

Trover and conversion. 326-328 

Concurrent with detinue and trespass, and with replevin in 

cases of wrongful distress. 327 

Actions by bailor and bailee vs. converter under modern cases 331, 332 

See TRESPASS, PERSONAL PROPERTY 

BARGAIN AND SALE, deed of. 164,165 

In United States. 167 

See USES, springing and shifting. 

BATTERY, see ASSAULT AND BATTERY 

BATTLE, trial by.100, note 

BEASTS, see ANIMALS 

BENEFITS, covenants involving, run with land. 304,306 

BEQUEST, see WILLS 

BILLS OF EXCHANGE, foreign and inland. 445,448 

BIRTH OF ISSUE. 126,127 

BLOOD FEUD . 385 

BONA FIDE PURCHASES FOR VALUE, uses. 203 

BOOKLAND AND FOLKLAND. 21-27 

BOT . 35 

BREAKING BULK . 37 8 

BURGLARY . 37 6 

BY-LAWS, of corporations. 457,458 


































INDEX 5I3 

C 

CARRIER, see COMMON CARRIERS 

CASE, action of, for nuisance. 402 

for libel . 400,401 

for slander . 398,399 

for negligence . 402,405 

for waste, see WASTE 

CASUAL EJECTOR . 137,138 

“CAUSA” as origin of consideration. 429 

CESTUE QUE USE, development of his interest. 201-203 

CHANCERY, the Chancellor. 195-199 

CHANCERY, development of, 15th to 19th centuries. 473-475 

See EQUITY JURISDICTION 

CHATTEL MORTGAGES, effect on fixtures. 183 

CHATTELS, transfer of title to. 332 

Title by original acquisition, game, etc. 332,333 

Title by finding, lost property. 333 

Title by adverse possession. 333 

See PERSONAL PROPERTY, FUTURE ESTATES 

CHATTELS REAL . 131-134 

Future estates in. 262-266 

CHOSE IN ACTION 
See ASSIGNMENT 

CHURCH COURTS, see ECCLESIASTICAL COURTS 

COLLATERAL HEIRS . 348-352 

CO MIT AT US . 8 

COMMERCIAL PAPER . 445,449 

COMMON CARRIERS . 391,392 

COMMON COUNTS, see INDEBITATUS ASSUMPSIT 

COMMON-FIELD SYSTEM, ANGLO-SAXON. 9,19,20 

COMMON LAW, development from customary law. 87,88 

COMMON PLEAS, court of. 190-193 

COMMON RECOVERY . 116,117 

Abolished . 117 

COMMON, rights of. 285,286 

COMMON VOUCHEE, in common recoveries. 116 

COMPURGATION, trial by.99,100 note 2 

CONDITION, estates upon. 232,239 

Early History . 231,232 

Forfeiture . 234 

Right of. entry cannot be assigned or devised. 235,236 

Forfeiture for attempt to assign right of entry. 237 

Relief from forfeiture in equity. 238,239 

CONDITIONAL FEE, prior to Statute De Donis. . 112 

CONDITIONAL SALE, effect on fixtures. 183 


34 






































514 HISTORY OF ENGLISH AND AMERICAN LAW 

CONSIDERATION, quid pro quo or benefit. 428 

Detriment . 4 2 9 

Past or executed consideration. 430,431 

Fundamental bases of doctrine of consideration. 431-433 

CONSENT RULE . 138 

CONTINGENT REMAINDERS . 244-248 

Distinguished from executory devises. 255-257 

Under modern Statutes. 258-260 

CONSTRUCTIVE ANNEXATION OF FIXTURES. 174,175 

CONSTRUCTIVE TRUSTS . 215 

CONTRACT . 408-442 

In Anglo-Saxon times.38,39,408-410 

Gage or pledge. 408 

Debt for loans or sales. 408 

Formal contracts, the fides facta . 409,410 

God-borh . 409 

In Feudal Period 

Debt, action of. 410-412 

for loans, purchase, price of goods, rent money due 
from surety, fixed sum under sealed instrument 411,412 

Quid pro quo . 412 

Covenant, contracts under seal. 412,413 

Parol contracts prior to assumpsit. 413,414 

Special assumpsit . 414-421 

Implied assumpsit . 421-423 

Indebitatus assumpsit to enforce quasi-contracts. 423-426 

Consideration in contract. 427-433 

Third persons as beneficiaries. 433-437 

Sales . 437-439 

Agency . 439-442 

CONVEYANCING . 150-168 

Early History . 150-168 

Opposing theories of tenant’s power to convey. 151-152 

Subinfeudation and substitution. 152-154 

Statute Quia Emptores, tenure. 154-156 

Tenure in modern times. 155,156 

Livery of seisin. 156-159 

Deeds of release and quitclaim. 160 

Deeds of surrender. 160,161 

Deeds of grant. 161 

Fines .. 162,163 

Deeds of bargain and sale lease, and release and covenants 

to stand seised. 163-167 

Modern statutory deeds. 167,168 

COPARCENERS . 223 

COPYHOLD TENURE . 67 












































INDEX 515 

CORAM REGE . 191,195 

CORPORATIONS . 452-463 

Early Roman law. 452 

Peace guilds, weavers, goldsmiths, haberdashers, fishmongers, 

vintners, tailors . 453 

Great trading companies, African Company, Russian Com¬ 
pany, Turkey Company, East Indian Company, become 

stock companies . 453.454 

Growth of business corporations through industrial expansion 455 

Powers of corporations. 455-458 

Stockholders and directors, their rights, and duties. 458-461 

Survival of corporate debts. 462,463 

COUNCIL, The . 193-195 

COUNTY, see COUNTY COURT 

COUNTY COURT, Anglo-Saxon period. 17,18 

Feudal period. 70,72 

COURT BARON . 76,77 

COURT LEET . 76 

COURTS, see COUNTY COURT, KING’S COURT, COM¬ 
MON PLEAS, KING’S BENCH, etc. 

COVENANT (breve de conventione) .412-413 

See SEALED INSTRUMENTS, SPECIALTIES 

COVENANT, writ of, origin. 133 

COVENANTS IN LEASES. I47-M9 

Implied covenant of quiet enjoyment. 147 

Implied covenant of tenant to repair. 147 

COVENANTS, running with the law. 303-3 12 

Covenants of warranty. 3°3, 3°4 

Covenants involving benefits. 304-306 

Covenants fixing terms of tenure, rent charges, between joint 

tenants, and tenants in common. 307-310 

Covenants in equity. 311-312 

CRIMES . 371-384 

Early History, Anglo-Saxon period. 34,36 

Early Norman period. 371,372 

Felonies . 372-378 

Homicide, Murder, Manslaughter. 372-373 

Excusable and justifiable. 373,374 

Rape, Abduction . 374 

Arson .. 374,375 

Burglary . 375 

Robbery . 376 

Larceny . 376-378 

Intent to steal, animus furandi . 377 

Breaking bulk . 378 






































5 i6 HISTORY OF ENGLISH AND AMERICAN LAW 


CRIMES —Continued 

False pretences, obtaining goods by. 377 

Embezzlement . 378 

Misdemeanors . 378-382 

CROPS . 173 

CURIA REGIS . 70 

CURTESY . 125-128 

Early History . 126 

Birth of Issue . 126-127 

Origin of the term “Curtesy”. 127 

Equitable estates, Curtesy in. 127,128 

Modified by married women’s property act. 128 

CUSTOM OF MERCHANTS, see LAW MERCHANT 

CUSTOMARY COURT . 76,77 

CUSTOMARY LAW . 68 

CWIDE, (Statement) form of will of Saxon period. 355 

D 

DARREIN PRESENTMENT, assize of. 83 

DEATH FROM WRONGFUL ACT. 406, 407 

DEBT, action of, for loans, purchase price of goods, rent, money 
due from surety, fixed sum under sealed instrument, all cases 

for fixed sum due. 411, 412 

Quid pro quo . 412 

To enforce rent. 277,278 

DEBTS, liability for corporate. 461,462 

DE BONIS CONDITIONALIBUS, statute. 113 

DECEIT, relation to assumpsit, see ASSUMPSIT 
DEEDS, see CONVEYANCING 
DEFAMATION, see LIBEL and SLANDER 

DEODANDS . 382 

DE PROPRIETATE PROBANDA, writ of. 321 

DETINUE, see PERSONAL PROPERTY, BAILMENTS 
DETRIMENT, see CONSIDERATION 
DEVISE, see WILLS, EXECUTORY DEVISES 

DISCOVERY, in equity. 477 

DISSEISIN, see NOVEL DISSEISIN, ASSIGNMENT of 
RIGHTS OF ACTION 

DISSOLUTION OF CORPORATION, effect on corporate prop¬ 
erty and debts. 462,463 

DISTRAINT OF GOODS TO COMPEL APPEARANCE, 

personal actions . 490 

See REPLEVIN, RENTS 

DISTRESS, enforcement of rent against land. 276 

DISTRIBUTION OF CHATTELS, Anglo-Saxon period. 360,361 

In 13th century. 361,362 































INDEX 5I7 

DISTRIBUTION OF CHATTELS —Continued 

By statute of 22, 23, Chas. II, ch. 10. 362 

‘‘Gradual” scheme of. 363 

See INTESTATE SUCCESSION 

DIVORCE, effect on estate in entirety. 231 

DOGS, bites of. 3gx 

DOWER . 120-125 

Ancient Germanic law. 120,121 

Dower at the church door. I2i 

Dower in chattels.. 121 

Dower in Socage land. 122 

Common law dower. 122 

Barring of dower. 123,124 

Jointures . 123,124 

English Dower Act of 1834. 124 

Dower in the United States. 124 

Dower in equitable estates. 125 

E 

EALDORMAN . 17 

EORL AND CEORL . 32 

EASEMENTS, early history. 288,292 

Assize of nuisance. 290 

Action on case for nuisance. 290 

Easements in gross. 291,292 

Creation of easements and profits. 292-302 

By grant . 293 

By implied grant or reservation. 293-298 

By prescription . 298-302 

ECCLESIASTICAL COURTS, actions for defamation in. 397,398 

Jurisdiction over wills. 359 

EJECTIO FIRMAE, writ of. 130 

EJECTMENT . 134,142 

Developed from ejectio firmae . 135,136 

Succeeded and supplanted real actions. 135,136 

Entry by tenant in ejectment. 137 

Casual ejector . 137,138 

Consent rule . 138 

Fictitious parties in ejectment. 138,139 

Possession protected . 140 

Repeated actions between same parties. 141,142 

EMBEZZLEMENT . 378 

EMBLEMENTS . 173 

EMPLOYEE, see SERVANTS 

ENRICHMENT, unjust, see QUASI-CONTRACTS 

ENGLISH DOWER ACT, 1834. 124 










































518 HISTORY OF ENGLISH AND AMERICAN LAW 

ENROLLMENTS, Statute of. 166 

ENTIRETY, estates in. 228-230 

Effect of Married Women’s Property Act. 228,231 

In personal property. 230 

Conveyance by husband or wife alone. 228,229 

Effect of divorce. 231 

No partition . 231 

ENTRY BY TENANT IN EJECTMENT. 137 

ENTRY, rights of, see CONDITIONAL ESTATES, EJECT¬ 
MENT, ASSIGNMENT OF RIGHTS OF ACTION 

EQUITY, covenants enforceable in, by specific performance_311,312 

EQUITY JURISDICTION, development. 473-488 

Origin and early development. 195-199 

Development of Chancery, 15th to 19th centuries. 473-475. 

Development of equity jurisdiction 

Over contract . 478-481 

Over torts . 481-484 

Over mortgages . 484-488 

EQUITY OF REDEMPTION. 486,487 

EQUITY PRACTICE AND PLEADING. 501,503 

ESCHEAT . 49,156 

ESSOINS, or excuses for non-appearance. 490 

ESTATES IN FEE. 108-111 

In Saxon period. 108,109 

Use of the word “heirs”. 109 

ESTATES TAIL, converted into estates in fee by conveyances.. 117 

General and special. 114 

In United States. 117 

EVICTION, as requisite of suspension of rent. 281-284 

EXECUTOR, origin of.359 note 8 

EXECUTORY DEVISES . 253-257 

Before Statute of Wills. 253,254 

After Statute of Wills. 254,255 

EXECUTORY ESTATES . 248-253 

Future springing interests without precedent estates.... 248,249 

Contingent remainder after term of years. 248,249 

Fee upon a fee. 249-253 

Springing and shifting uses. 250-253 

In personal property. 262-266 

F 

FALSE IMPRISONMENT, trespass. 396 

FALSE PRETENSES, obtaining goods by. 377 

FEE TAIL, estate in. 113,117 







































INDEX 


519 


FEE UPON A FEE, in conditional fees prior to the Statute 

De Donis . 

See EXECUTORY ESTATES 
FELONIES, see CRIMES 

FEOFFMENTS . 

FEUD, blood . 

FEUDAL LAW . 

Feudalism in Normandy. 


Introduction into England. 45-49 

Military Tenure . 49-57 

Frankalmoign Tenure. 57 

Serjeanty Tenure . 57,58 

Socage Tenure . 58-59 

Reliefs . 60 

Aids . 60-61 

Wardship and Marriage. 61-63 

FICTITIOUS PARTIES IN EJECTMENT . 138,139 

FIDES FACTA . 409,410 

FINDER, see LOST PROPERTY 

FINES, entails barred by .117,162,163 

Abolished . 117,163 


FIRES, liability for spreading fires. 390 

FISH . 172 

FIXTURES . 174-184 

Early History . 174,174 

Development of test of intent. 175-178 

Constructive annexation . 174,175 

Machinery and other trade fixtures. 175-177 

Fixtures for domestic convenience. 178,179 

Tenants’ fixtures . 179-183 

Chattel mortgages and contracts of conditional sale, effect on 
fixtures . 183 


FOLKLAND AND BOOKLAND. 21-27 

FORFEITURE OF RIGHT OF ENTRY FOR BREACH OF 
CONDITION FOR ATTEMPT TO ASSIGN THE SAME 237 

Relief in equity from forfeiture in certain cases. 238,239 

See FEUDAL LAW, MORTGAGES 

FRANKALMOIGN TENURE . 57 

FRAUD, jurisdiction over in equity. 476 

FRAUDS, Statute of, as to wills. 360 

See LANDLORD AND TENANT, LEASES, ASSIGN¬ 
MENTS, CONVEYANCES 
FREE BENCH 


127 note 6 



































520 HISTORY OF ENGLISH AND AMERICAN LAW 

FUTURE ESTATES, modern law. 258,262 

See REVERSIONS, REMAINDERS, EXECUTORY ES¬ 
TATES, SHIFTING AND SPRINGING USES, EX¬ 
ECUTORY DEVISES 

FYRD . 50 

G 

GAGE OR PLEDGE. 408 

GAME . 172 

GERMANIC TRIBES, their government and laws before the 

Anglo-Saxon emigration . 6-10 

GESITH .,. 32 

GIFTS OF CHATTELS. 332 

GLANVILLE'S TREATISE . 86-S8 

GOD-BORH . 409 

GRADUAL SCHEME OF DISTRIBUTION. 363 

GRAND ASSIZE . 82 

GRAND JURY, origin. 496,497 

GRANT AND ATTORNMENT, conveyance by. 161 

GRANT, deed of. 161 

GUILDS, PEACE — weavers, goldsmiths, haberdashers, fish¬ 
mongers, etc . 453 

H 

HALF-BLOODS, inheritance by.351,352,353 

HENRY II, state of law in his accession. 78 

His reforms . 81-86 

1. Assize of novel disseisin . 82 

2. Grand assize . 82 

3. Assize of Mort d’Ancestor . 83 

4. Assize of darrein presentment . 83 

5. Assize utrum . 84 

6. Indictment through accusing juries. 85 

King’s Court at Westminster. 85 

Itinerant Courts . 86 

HIDE . 51 

HOMICIDE, MURDER, MANSLAUGHTER.35,36,372,373 

Excusable and justifiable. 373,374 

HUE AND CRY, see PURSUIT OF THIEF 

HUNDRED COURTS .16,17,72 

HUSBAND AND WIFE, see DOWER, CURTESY, MARI¬ 
TAL RIGHT ESTATE BY, MARRIED WOMEN 

I 

IMPLIED ASSUMPSIT, quantum meruit, on promises implied 
in fact . 421,423 

































INDEX 


521 


IMPLIED ASSUMPSIT —Continued 

Early relief in equity in these cases. 422 

Concurrent with detinue and case against bailees. 423 

IMPLIED TRUSTS . 212,214 

See RESULTING TRUSTS 

IMPRISONMENT, followed by fine for misdemeanors. 379,380 

IMPROVEMENTS BETWEEN COTENANTS. 227 

INCORPORATION, see POWERS OF CORPORATIONS 

INCORPOREAL INTERESTS . 273,312 

Rights of lordship. 274 

Advowsons . 275 

Rents, rent charge and rent seek. 275-280 

Suspension and extinguishment of rents. 280-284 

Profits . 284-288 

Profits in gross. 287 

Easements, early history. 288-292 

Creation of Easements and Profits. 292-302 

By grant . 293 

By implied grant or reservation. 293-298 

By prescription . 298-302 

INDEBITATUS ASSUMPSIT, based on benefit or quid pro 

quo, concurrent with debt. 420,421 

INDEBITATUS ASSUMPSIT, to enforce quasi-contracts. 423-427 

INDEFINITE TENANCIES . 142-144 

Tenancies at will. 142-143 

Tenancies from year to year, and from month to month.... 143,144 

Tenancies by sufferance. 144 

INDICTMENT BY ACCUSING JURIES, origin. 85 

INEVITABLE ACCIDENT . 386,387 

Defense to crime . 384 

INFANTS, capacity of. 470-472 

Crime and tort.383,384, 386,387 

To convey or lease land, to recover land, to make contracts 470-472 

INHERITANCE . 345-351 

In Saxon period. 345 

In Feudal period. 345-351 

Statutory changes . 351-354 

INJUNCTIONS TO RESTRAIN TRESPASS, waste and nui¬ 
sance . 481-484 

INNKEEPERS . 39 L 392 

INSANE PERSONS, see LUNATICS 

INSURANCE . 463-466 

Origin and early history. 463,464 

Carried into the common law. 465,466 






































522 HISTORY OF ENGLISH AND AMERICAN LAW 

INTENT not an element of crimes in Anglo-Saxon Law. 382 

Deodands in Anglo-Saxon Law. 382 

Self-defense not allowed in Anglo-Saxon Law. 383 

Allowed as justification, Laws of Henry 1 . 383 

Gradual growth of intent as moral element of crime. 383,384 

Children of tender years, responsibility for crime. 384 

INTENT as requisite or test of fixtures. 175,178 

INTENT TO STEAL. 377 

INTERESSE TERMINI . 145 

INTESTATE SUCCESSION TO CHATTELS. 360,363 

In Saxon period, division into thirds. 360,361 

Kin had charge of distribution. 361 

Administration of personal estate, 13th century, Magna Carta, 

§27. 361,362 

The ordinary . 361,362 

Administrators, statute of 1357. 362 

Distribution by Statute, 22, 23, Chas. II, ch. 10. 362 

“Gradual” scheme of distribution. 363 

ITINERANT COURTS . 86 

J 

JOINT TENANCIES . 217-222 

The Four Unities. 219 

Conveyance or mortgage by joint tenant. 219,221 

Survivorship.217,218,222 

Modified by modern statutes. 223,224 

In personal property. 224 

Partition . 224,225 

Ouster of tenant by cotenant. 226 

Accounting for rents and profits between cotenants. 226,227 

Repairs, improvements, taxes, etc., between cotenants. 227 

Waste between cotenants.227,228 

JOINT TENANTS AND TENANTS IN COMMON, covenants 

fixing terms of holding run with land. 307-310 

JOINTURES . 123,124 

JURY TRIAL, origin.81,82,99,100 

Later development . 491,493 

See GRAND JURY 

JUSTICES IN EYRE. 192,193 

JUSTICES OF ASSIZE. 193 

JUSTICES OF THE PEACE. 498 

K 

KING’S BENCH . 190-193 

KING’S COURT . 68-70 

At Westminster, Henry II. 85 








































INDEX 523 

KING’S COURT —Continued 

King’s Bench and Common Pleas. 190-192 

Itinerant Courts, Justices in Eyre. 192,193 

Justices of Assize. 193 

KNIGHT’S FEE . S i 

KNIGHT’S SERVICE, see MILITARY TENURE 

L 

LAENLAND . 27,28 

LAESIO FI DEI, see FIDES FACTA, ECCLESIASTICAL 
COURTS 

LANDLORD AND TENANT, covenants fixing terms between 

run with land. 307-310 

See TENANCIES FOR YEARS 

LARCENY .36,376,378 

Intent to steal, animus furandi . 377 

False pretenses, obtaining goods by. 377 

Embezzlement . 378 

LAW MERCHANT . 443,445 

LEASE AND RELEASE, conveyance by. 161 

Under statute of uses. 166,167 

Not used in United States. 167 

LEASES, form of, Statute of Frauds. 145 

See TENANCIES FOR YEARS 

LEGAL WRITERS PRIOR TO HENRY II.79 note 4 

LIBEL AND SLANDER. 397-401 

Defamation in Anglo-Saxon times. 397 

In 13th century, remedy in local courts only. 397 

Later, remedy in Ecclesiastical Courts. 397,398 

Action on the case for defamation. 398,399 

Criminal libel, origin.399,400 

Libel a tort, action on case. 400,401 

LIEN THEORY OF MORTGAGES. 487,488 

LIFE ESTATES . 117 

LIGHT AND AIR, easements of, by implied grant. 297,298 

LIMITATION, estates upon. 239-242 

Effect of Statute Quia Emptores upon estates in fee upon 

limitation . 240-242 

LIMITATION OF REAL ACTIONS, basis of prescription-299-301 

LIVERY OF SEISIN. 156-159 

LOAN, debt for. 4 U 

LOCAL COURTS, characteristics. 80,81 

LORD AND MAN, Anglo-Saxon period. 28,32 

LORD, seisin of, “in service”. 98 

LORDSHIP, rights of. 96,274 

LOST PROPERTY . 333 





































HISTORY OF ENGLISH AND AMERICAN LAW 


524 

LUNATIC, liability in tort. 386 

Responsible for crimes. 383, 384 

M 

MACHINERY AS FIXTURES. I 75 -I 77 

MALICIOUS PROSECUTION, see LIBEL AND SLANDER 

MANOR AND THE MANORIAL COURT. 73,77 

MANSLAUGHTER . 372,373 

MARITAL RIGHT, estates by. 125,126 

MARRIED WOMEN, capacity. 467,470 

Separate property . 467,468 

Contracts . 468 

Crimes . 469 

Married Women’s Property Acts. 469,470 

MARRIED WOMEN’S PROPERTY ACTS.128,469,470 

Effect on estate in entirety. 228,231 

MASTER AND SERVANT, see SERVANTS, TORTS, 
AGENCY 

MASTERS IN CHANCERY. 473 

MASTER OF THE ROLLS. 473-475 

M1SERICORDIA, see MISDEMEANORS 

MERCHET . 66 

MESNE LORDS AND TENANTS-IN-CHIEF. 50,51 

MILITARY TENURE . 49-57 

MISDEMEANORS . 378-382 

Term first used in 16th century. 378 

Amercements for petty offences. 378,379 

Imprisonment and fine in King’s Court. 379,380 

Presentments for misdemeanors. 380,381 

Trespass, punishment of misdemeanants in, by imprisonment 

and fine . 380,381 

MONEY HAD AND RECEIVED, action for. 425 

MORT D’ANCESTOR, assize of.82,103,104 

MORTGAGES . 484,488 

Mortuum vadium . 484 

Vivum vadium . 484 

Common Law Mortgage. 485,486 

Intervention by equity. 486,487 

Modern mortgages. 487, 488 

MORTUUM VADIUM . 484 

MURDER . 372,373 

N 

NECESSITY, see WAY OF NECESSITY 

NEGLIGENCE, action on cases for negligence, early cases.402,405 

Negligence in cases of wilful acts without intentional wrong 405 

Personal injury cases not included within assault and battery 406 





































INDEX 


525 


NEGOTIABLE INSTRUMENTS . 445-449 

Bills of Exchange, foreign and inland; promissory notes_445-448 


Negotiability, nature of. 448,449 

NONCUPATIVE WILLS, 13th century. 359 

NORMAN CONQUEST . 45-49 

NORMAN LAW AND FEUDALISM. 42-45 

NOVEL DISSEISIN, assize of. 100,103 

To enforce rent-seck. 277 

NOVISS1MA VERBA, last will of Saxon period. 355 

NUISANCE . 402 

Assize of nuisance. 402 

Action of cases for nuisance. 402 

Injunctions to stay. 483,484 


O 

ORDEAL, trial by.99 note 2 

ORDINARY, in administration of estates of decedents. 361,362 

OUSTER BETWEEN COTENANTS. 226 

OUTLAWRY, Anglo-Saxon period. 35 

Feudal period . 385,386 

To compel appearance in personal actions. 490 

OWNERSHIP AND FEUDALISM. 95,96 

OWNERSHIP AND POSSESSION, of Chattels. 328,332 

P 

PARANTELIC SCHEME OF INHERITANCE. 349 

PAROL PROMISES NOT CREATING DEBTS, no action to 

enforce prior to assumpsit. 4M 

PARTIES IN PLEADING AND PRACTICE, see PLEADING 
AND PRACTICE 

PARTITION . 224,225 

Not allowed in estates in entirety. 231 

PARTNERSHIPS . 449,452 

In middle ages the “comtnenda” and the “catnpagnia” or 

" societas” ... 449 , 45 ° 

Liability of individual partners, development of the law.... 450,451 
Introduction and development in England through equity.... 451,452 

PASSIVE TRUSTS IN UNITED STATES. 210,211 

PEPOUDROUS, courts . 443,444 

PERPETUITIES . 226-272 

Term “Perpetuity,” first use. 268,269 

Development of rule against perpetuities. 269-272 

PERSONAL PROPERTY . 313,344 

Remedies for its protection, appeal of larceny. 3 * 3 , 3*5 

Action for Res Adiratae . 3 J 4 , 3 * 5 ,3*8,319 

Trespass de bonis asportatis . 316-320 





































526 HISTORY OF ENGLISH AND AMERICAN LAW 

PERSONAL PROPERTY— Continued 

By bailee. 3*9 

Replevin .320,321,327 

Bailments, detinue by bailor vs. bailee. 321,325 

Detinue Sur Trover. 325,326 

Trover and Conversion. 326,328 

Concurrent with detinue and trespass. 327 

Concurrent with replevin in cases of wrongful dis¬ 
tress . 327 

Ownership and possession. 328,332 

PERSONAL PROPERTY, future estates in. 262-266 

Chattels real, future estates in. 262-264 

PES OF THE FINE. 162 

PLEADING AND PRACTICE IN EQUITY. 501,503 

PLEADING, common law, outline. 500,501 

PLEADING, development of. 493-495 

PLEDGE . 408 

POSSESSION, origin of term indicating occupation by tenant 

for years . 133 

POSSESSION, protected in ejectment. 140 

POSSESSION, protection of, see NOVEL DISSEISIN, MORT 
D’ANCESTOR, WRITS OF ENTRY, TRESPASS, DETI¬ 
NUE, TROVER, REPLEVIN 

POSSESSION AND OWNERSHIP, RELATION BETWEEN 101 

POSSESSION AND OWNERSHIP, of Chattels. 328-332 

POSSESSION AND SEISIN, see SEISIN AND POSSES¬ 
SION 

POWERS . 253 

POWERS OF CORPORATIONS. 455-458 

Of incorporation . 455 

Implied powers . 456,457 

Seals of corporations. 456,457 

By-laws . 457,458 

PRACTICE AND PLEADING. 48^-509 

Reforms in United States, New York Code, extended to other 

states . 503,508 

Reforms in England. 508,509 

PRACTICE AT COMMON LAW, outline. 501 

PRESCRIPTION . 298-302 

Limitation of real actions. . 299-301 

PRESENTMENTS FOR MISDEMEANORS, rare at first. 380 

Gradually took place of trespass in misdemeanor cases. 381 

PRIMER SEISIN . 56 

PRIMOGENITURE .109,345-347 

In United States. 347 




































INDEX 527 

PROCEDURE, CIVIL, Summons started real actions. 489,490 

Personal action, early procedure. 490 

Jury trial, development thereof. 491-493 

Pleading, development of. 493,495 

CRIMINAL PROCEDURE, appeals of homicide, rape, arson, 

robbery, larceny, etc. . 495 

Indictment displaced criminal appeals. 496-497 

Trial of accused persons, petit juries. 497 

Trial of misdemeanants. 498 

Justices of the peace. 498 

Arrest . 498,499 

PROFITS . 284-288 

Profits in gross. 287 

PROMISSORY NOTES . 446-448 

PUR AUTRE VIE, estate. 119 

PURCHASE FOR VALUE, uses. 203 

See ASSIGNMENT OF CHOSES IN ACTION 
PURSUIT OF THIEF, Anglo-Saxon period. 36,37 

0 

QUANTUM MERUIT, see IMPLIED ASSUMPSIT 

QUARE EJECT INFRA TERMINUM, Writ of...,. 130 

QUARTER OR GENERAL SESSIONS. 499 

QUASI-CONTRACTS, by action of indebitatus assumpsit . 423-427 

QUIA EMPTORES, statute of. 152-154 

Effect on fees upon limitation. 240-242 

QUID PRO QUO . 412 

QUITCLAIM, deed of. 160,168 

R 

RAPE . 374 

REAL AND PERSONAL PROPERTY DISTINGUISHED... 169-171 

Origin of terms “real” and “personal”. 171 

REFORMS IN PLEADING AND PRACTICE, New York 

Code . 503-508 

Adopted in other states. 508 

Reforms in practice and pleading in England. 5°8, 5°9 

RELEASE, Deed of. 160 

RELIEFS . 60 

REMAINDERS . 243-248 

Contingent and vested. 244-248 

Contingent remainders void in 14th century, valid in 15th... 245 

Contingent remainder after term of years void. 246 

Must take effect instantly after precedent estate. 247 

Destruction or ending of precedent life estate destroys con¬ 
tingent remainders . 247,248 

In personal property. 262-266 






































528 HISTORY OF ENGLISH AND AMERICAN LAW 


RENT, debt for. 411,412 

RENTS . 275,280 

Rent service, tenurial rents. 276 

Rent charge and rent seek. 275,276 

Enforced by writ of annuity. 276 

Enforced by distress against land. 276 

Enforced by novel disseisin . 277 

Enforced by debt. 277,278 

Enforced by assumpsit. 278,279 

Use and occupation, 11 Geo. II, ch. 19, §14. 279 

RENTS AND PROFITS, accounting for, between cotenants... 226,227 

REPAIRS between COTENANTS. 227 

REPLEVIN .320,321,327 

RES ADIRATAE, action for.314,315,318,319 

RES ADJUDICATA, application in ejectment. 141,142 

RESULTING TRUSTS . 212,214 

RESULTING USES . 204 

REVERSIONER AFTER LIFE ESTATE, seisin of. 98 

REVERSIONS . 243,244 

REVOCATION OF WILLS, not revocable in Saxon period ex¬ 
cept the ewide . 355 

Revocable in 13th century. 358-359 

RIGHTS OF ENTRY, estates upon condition. 235,236 

Effect of statute 32 Hen. VIII, ch. 9. 235 

ROBBERY . 375,376 

ROMAN LAW AND ANGLO-SAXON LAW. 5 

ROMAN LAW, early corporations. 452 

S 

SAKEBER . 314 

SALE OF LAND, contract therefor, trust arising. 215,216 

SALES .38,437,439 

In 12th and 13th centuries. 437 

Transfer of title, development of executed sales as present 

transfers of title. 438 

Effect of assumpsit on sales. 438,439 

SCUTAGE . 54,55 

SEALED INSTRUMENTS, contracts. 412,413 

Debt for fixed sum under. 412 

SEALS, of corporations. 456,457 

SE1GNORIAL JURISDICTION . 75 

SEISIN AND POSSESSION. 96-107 

Nature of Seisin. 96,97 

Seisin of a villein tenant. 97,98 

Seisin of lord “in service”. 98 

Seisin of reversioner after life estate. 98 











































INDEX 5 2 9 

SEISIN AND POSSESSION —Continued 

Remedies for protection of Seisin. 99,107 

a. Writ of right. gg 

b. Assize of novel disseisin . 100,103 

c. Assize of Mart d’Ancestor . 103,104 

d. Writ of entry sur disseisin . 105 

e. Writs of entry. 104-106 

Seisin is ownership. 106,107 

SEISIN, livery of, see LIVERY OF SEISIN 

SELF-DEFENSE, in criminal law. 383 

tort . 386,387 

SERJEANTY TENURE . 57,58 

SERVANTS, torts of. 392,395 

Development of modern rule. 394,395 

SHELLY’S CASE, rule in. 260,262 

SHERIFF, Anglo-Saxon period. 17,18 

SHIFTING USES . 249,253 

SHIREMOOT . 17,18 

SIX CLERKS, in Chancery. 474 

SLANDER, see LIBEL AND SLANDER 

SLAVERY in Anglo-Saxon period. 33 

SOCAGE TENURE . 5S-60 

SPECIALTIES . 412,413 

SPECIFIC PERFORMANCES, contract. 480,481 

Contracts to sell corporate stock. 459,460 

SPRINGING USES . 250-253 

STAPLE, Courts of the. 444 

STAR CHAMBER, origin of, criminal libel_*.. 399,400 

STARE DECISIS . 88 

STATUTES FROM CONQUEST TO HENRY II.77 note 3 

STATUTE OF FRAUDS 

Leases . 145 

Assignments of Tenure. 146 

Surrenders . 149 

Express Trusts . 212 

See FRAUDS, STATUTE OF 


STATUTE OF USES.. 206-208 

Jointures . 123 

STATUTE OF WILLS. 360 

STOCK, in corporations, transfer of, stock books. 460 

Voting stock . 460,461 

STOCK in land corporation, why treated as realty under early 

law . 458-459 

STOCKHOLDERS AND DIRECTORS, rights and duties.458-461 

SUBINFEUDATION AND SUBSTITUTION. 152-1 54 










































530 HISTORY OF ENGLISH AND AMERICAN LAW 


SUMMONS, starting real actions.489,490 

SURETY, debt for money due from. 411,412 

SURRENDER, deeds of. 160,161 

By tenant for years. 149 

SURVIVAL OF ACTIONS IN TORT. 406,407 

SURVIVORSHIP, in joint tenancies.217,218,222 

SUSPENSION AND EXTINGUISHMENT OF RENT. 280-284 

T 

TALLAGE . 66 

TALTARUM’S CASE .n6note 

TAXES, payment of, between cotenants. 227 

TENANCIES AT WILL. 142,143 

TENANCIES AT SUFFERANCE. 144 

TENANCIES FOR YEARS. 129-138 

Writ of Covenant by tenant vs. landlord. 129 

Writ Quare ejecit infra terminum . 130 

Writ of trespass by tenant vs. landlord. 130 

Trespass de ejectione firmae . 130 

Tenancies for years chattels real. 131,134 

Tenancies at will. 142,143 

Tenancies from year to year and from month to month.. 143,144 

Tenancies by sufferance. 144,145 

Form of lease, Statute of Frauds. 145 

Assignments, Statute of Frauds. 146 

Covenants in leases. 147,148 

Surrenders, Statute of Frauds. 149 

TENANCIES FOR YEARS, future estates in. 262-264 

TENANCIES FROM YEAR TO YEAR AND FROM MONTH 

TO MONTH . 143,144 

TENANCIES IN COMMON. 222,223 

In personal property. 224 

Partition, ouster, accounting for rents and profits, repairs, 
improvements, taxes, waste between cotenants, see JOINT 
TENANCIES 

TENANT’S FIXTURES . 179-183 

TENURE AFTER QUIA EMPTORES . 154-156 

In modern times. 155,156 

TERRA REGIS . 22,39 

THEGNS, OR THANES. 32,33 

THIRD PARTIES, AS BENEFICIARIES IN CONTRACT.. 433-437 

TITLE, covenants of, run with the land. 303,304 

See CONVEYANCES 

TITLE TO CHATTELS, transfer of. 332 

See SALES 





































INDEX 


531 


TORTS .385-407 

Liability in tort, Anglo-Saxon period. 385,386 

Blood feud. 385 

Wer, bdt, wite, outlawry. 385,386 

Inevitable accident. 386,388 

Self-defense . 386,387 

Damage by wilful acts without moral wrong. 388,391 

Common carriers and innkeepers. 391,392 

Dogs, bites of. 391 

Trespass by animals. 390,391 

Servants, torts of. 392,395 

Assault and battery, and false imprisonment. 395,396 

Libel, slander, and malicious prosecution. 397,401 

Nuisance and negligence. 402,407 

TORTS, Anglo-Saxon period. 34,37 

TRADE FIXTURES .175,177,179-183 

TRADING COMPANIES, African Company, Russian Company, 

Turkey Company, East India Company. 453,454 

TREASON, Anglo-Saxon period. 35 

TRESPASS, by animals. 390,391 

De bonis asportatis . 316-320 

Action by bailee. 319 

Injunction to stay. 482,483 

TRESPASS, misdemeanors punished by imprisonment followed 

fine in . 380,381 

TRESPASS, writ of, by tenant vs. landlord. 129 

TRIAL BY BATTLE, by ordeal, and by oath helpers or com¬ 
purgation .99,100 note 2 

TRIAL BY JURY, criminal cases. 497 

See JURY, trial by 

TRIAL FOR MISDEMEANORS. 498 

TRINODA NECESSITAS . 47 

TRUST ESTATES, curtesy in. 127,128 

TRUSTS, uses for a term of years. 206,209 

Active uses . 206,209 

A use upon a use.206,207,209 

Incidents attaching to trusts. 209,210 

Passive trusts in United States. 210,211 

Creation of trusts, statute of frauds. 212 

Implied or resulting trusts. 212,215 

Constructive trusts . 21 5 

Trust from contract to sell land.215,216 

U 

UNDISCLOSED PRINCIPAL . 440,442 

UNJUST ENRICHMENT . 424,426 










































532 HISTORY OF ENGLISH AND AMERICAN LAW 


USE AND OCCUPATION, Statute n Geo. II, ch. 19, §14. 279 

USE AND OCCUPATION, of a trespasser, assumpsit not 

allowed . 426,427 

USE UPON A USE. 206-209 

USES .. 19^-216 

In 13th century. 199 

Uses to avoid creditors. 199 

Uses to avoid the statute of Mortmain. 200 

Uses to devise land by will. 200 

Uses to avoid forfeiture for treason. 200,201 

Cestue qui use, development of his interest. 201-203 

Uses as estates in land. 203,204 

Resulting uses . 204 

Uses by bargain and sale and covenants to stand seised.205,206 

Statute of Uses. 206-208 

Trusts, viz., uses not affected by the statute, active uses, a 
use upon a use. 206-209 

V 

VICE-CHANCELLOR . 475 

VIL . 71,73 

VILLAGE COMMUNITY IN GERMANY before the migra¬ 
tion to England. 9,10 

In England after the migration. 12,13 

VILLEIN OR CUSTOMARY TENURE. 63-68 

VILLEINS, see VILLEIN TENURE 

VILLEIN TENANT, Seisin of. 97,98 

VIRGATE or YARDLAND. 65 

VIVUM VADIUM . 484 

VOTING BY STOCKHOLDERS. 460,461 

W 

WAGER BY LAW, see TRIAL BY OATH HELPERS OF 
COMPURGATION 

WARDSHIP AND MARRIAGE.!. 61-63 

WARRANTY, early history, covenants of, run with the land... 303,304 

WARRANTY, effect on estates tail. 115 

WARRANTY DEED . 168 

WASTE . 184-189 

Early history . 184,185 

Permission waste . 186,187 

Ameliorating waste . 187,188 

Equitable waste. 188,189 

WASTE, injunction to stay. 481,482 

WASTE BETWEEN COTENANTS. 227,228 

WATER, property in. 172 





































INDEX 533 

WAYS OF NECESSITY. 294,299 

See EASEMENTS BY IMPLIED GRANT 

WER AND WITE, tort and crime. 35,38s 

WILD ANIMALS, game and fish. 172 

WILFUL ACTS WITHOUT MORAL WRONG. 388-391 

WILLS, the Saxon period, not ambulatory or revocable. 354-356 

The Feudal period. Wills at law became void; wills of per¬ 
sonalty became ambulatory and revocable.356-359 

WILLS OF FOLKLAND. 25 

WILLS BY MEANS OF USES. 200 

WITAMAGEMOT OR WIT AN . 15,16 

WITE . 35 

WRITS OF ENTRY. 104-106 

WRITS OF ENTRY SUR DISSEISIN . 105 

WRIT OF RIGHT. 99 

See Replevin, Detinue, Trespass, Waste, writ of, etc. 
























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